Alexander Brown & Ors on behalf of Ngarla & Wanparta/Western Australia/Sulphide Resources Pty Ltd

[2011] NNTTA 64

NATIONAL NATIVE TITLE TRIBUNAL

Alexander Brown & Ors on behalf of Ngarla & Wanparta/Western Australia/Sulphide Resources Pty Ltd, [2011] NNTTA 64 (8 April 2011)

Application No:                 WO10/1139

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Alexander Brown & Ors on behalf of Ngarla & Wanparta (native title party)

-and-

The State of Western Australia (Government party)

-and-

Sulphide Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              28 March 2011
Date of reasons:                 8 April 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

Representative of the

native title party:               Ms Lea Notte, Pilbara Native Title Service

Representative of the        

Government party:           Mr Dennis Jacobs, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Sieu Vuong, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 21 April 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E45/3585 to Sulphide Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 9 August 2010, Alexander Brown & Ors on behalf of Ngarla and Wanparta – Native Title Claim No WC99/26, determined from 30 May 2007 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. The Tribunal made directions on 10 September 2010, requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The directions contain 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.

2. A number of conferences were held between September 2010 and February 2011 where parties advised they were negotiating the terms of an Alternative Heritage Agreement (‘AHA’). Directions were amended twice allow negotiations to continue.

3. On 7 February 2011, direction dates were further amended at the request of the native title party to allow time to receive further comments from the grantee party. A springing order was imposed at the State’s request due to the age of the matter and limited progress of negotiations. The springing order imposed on the native title party has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Act if there is non-compliance by the native title party by the due date, being 28 March (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

4. The Government party has complied with directions.  Neither contentions nor evidence has been received from the native title party and no explanation has been offered for the failure to comply with the Tribunal’s directions.  The springing order, applied to the Tribunal directions on 7 February 2011, has resulted in dismissal of the application.

Decision

1. Expedited procedure objection application WO10/1139 is dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
8 April 2011