Albert Little & Others on behalf of Badimia/Western Australia/Crosslands Resources Ltd
[2011] NNTTA 1
•7 January 2011
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little & Others on behalf of Badimia/Western Australia/Crosslands Resources Ltd, [2011] NNTTA 1 (7 January 2011)
Application No: WO10/683
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Albert Little & Others on behalf of Badimia (WC96/98) (native title party)
-and-
The State of Western Australia (government party)
-and-
Crosslands Resources Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: John Sosso, Deputy President
Place: Brisbane
Date of dismissal: 24 December 2010
Date of reasons: 7 January 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in the event of non-compliance – objection application dismissed.
Legislation:Native Title Act1993 (Cth) ss 29, 148(b)
Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103
Evelyn Gilla & Ors on behalf of Yugunga-Nya; Albert Little & Others on behalf of Badimia/Western Australia/Richard Forbes Donald Hill, NNTT WO10/242, WO10/243, [2010] NNTTA 104 (Deputy President Sumner)
Albert Little & Ors on behalf of Badimia/Western Australia/Ian John McNally, NNTT WO 10/236, [2010] NNTTA 107 (Deputy President Sumner)
Representatives:
Native title party: Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
Government party: Ms Leanne Davis, Department of Mines and Petroleum
Grantee party: Mr Rick Peters, Crosslands Resources Ltd
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 27 January 2010, the government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1629 (‘the proposed licence’) to Crosslands Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 24 May 2010, Albert Little & Others on behalf of Badimia – Native Title Claim Application No. WC96/98 registered on 4 October 1996 (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
The proposed licence comprises an area of 20.96 square kilometres, is located 36 kilometres north-west of Paynes Find in the Shire of Yalgoo and wholly overlaps the Badimia registered native title claim.
Relevant facts
On 4 June 2010, the Tribunal made directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 20 September 2010. The directions contained a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.
Between June 2010 and August 2010 a number of conferences were held where it was indicated to the Tribunal that both the grantee party and the native title party were negotiating on the Alternative Heritage Agreement (‘AHA’). During this period one extension to directions was requested in order for the negotiations to continue. This request was subsequently approved on 23 August 2010.
At an adjourned status conference on 6 October 2010, the native title party advised that an amended agreement had been sent to the grantee party for final review. The government party requested a further 8 weeks extension for compliance. All parties agreed and the request was approved on 11 October 2010.
On 1 December 2010 a further Status Conference was convened where the native title party advised that an agreement had been reached and the Regional Standard Heritage Agreement had been forwarded on to the claim lawyer for execution. The native title party, however, advised that execution would take some time. The native title party requested a springing direction be attached to its compliance, which was due by 13 December 2010. Despite this request, the Tribunal did not impose a springing direction at that time.
On 23 December 2010 I was appointed to conduct the inquiry. When considering the history of the inquiry I noted that the native title party’s request for a springing direction had not been actioned. Consequently the Tribunal wrote to the parties informing them that unless they objected, a springing direction would be made in accordance with the native title party’s request of 1 December 2010. None of the parties objected to the insertion of a springing direction, and, accordingly, the directions were amended to provide that if the native title party failed to comply by close of business 24 December 2010, the expedited procedure objection would stand dismissed.
The principles underpinning the Tribunal’s making of springing directions are set out in Dixon v Northern Territory (2002) 169 FLR 103 at 108/[24] – [25]. I adopt, for the purposes of this matter, the principles set out in that determination. It should be noted that this is not the usual situation whereby springing directions are either requested by another party or imposed by the Tribunal when there has been a history of either non-compliance with directions or an indication that a party will not comply with directions. The overarching obligation imposed on the Tribunal is to conduct expedited procedure objection inquiries in a timely manner. When it becomes clear for whatever reason that a native title party will not or cannot comply with directions, then the Tribunal will consider the making of springing directions.
However in this matter, the native title party has requested the imposition of a springing direction on itself. Where it is clear to the Tribunal that this request is made consciously by a native title party, and this course of action is not opposed by the other parties, then it is open and appropriate for the Tribunal to make such a direction. The material before the Tribunal indicates that the native title party’s request for a springing direction was made consciously and deliberately, and the making of such a direction was not opposed by either the government party or the grantee party.
The Tribunal has previously considered applications for dismissal of Badimia expedited procedure objections pursuant to s 148(b). Such directions were made in Evelyn Gilla & Ors on behalf of Yugunga-Nya; Albert Little & Others on behalf of Badimia/Western Australia/Richard Forbes Donald Hill, NNTT WO10/242, WO10/243, [2010] NNTTA 104 (22 July 2010) and Albert Little & Ors on behalf of Badimia/Western Australia/Ian John McNally, NNTT WO 10/236, [2010] NNTTA 107 (22 July 2010). In those matters the springing directions were made by Deputy President Sumner after requests in the first matter by the grantee party, and in the second matter by the government party. As pointed out above, in this instance the native title party itself has made the request for the imposition of a springing direction.
The native title party has failed to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having being informed of the possible consequences of failure to comply and the consequences of the springing direction.
Decision
Expedited procedure objection application WO10/683 is dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).
John Sosso
Deputy President
7 January 2011
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