Cyril Barnes on behalf of the Wongatha People/Western Australia/Westex Resources Pty Ltd

[2004] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes on behalf of the Wongatha People/Western Australia/Westex Resources Pty Ltd, [2004] NNTTA 7 (10 February 2004)

Application No: WO03/485

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

-and-

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

Cyril Barnes on behalf of the Wongatha People (WC99/1) (native title party)

-and-

The State of Western Australia (Government party)

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Westex Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   The Hon C J Sumner, Deputy President
Place:  Perth
Date:  10 February 2004

Catchwords:             Native title – future act – proposed grant of exploration licence - expedited procedure objection application – failure of native title party to comply with Directions – objection application dismissed – lack of evidence to support objection

Legislation:Native Title Act 1993 (Cth) s 148(b), s 237

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On the 15 January 2003, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant an exploration licence E29/417 to Westex 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 15 May 2003, Cyril Barnes on behalf of the Wongatha People (WC99/1) (‘the native title party’) made an expedited procedure objection application to the National Native Title Tribunal (‘the Tribunal’).

Relevant Facts

1. On 5 August 1998, the grantee party made an application for the grant of an exploration licence pursuant to section 58 of the Mining Act 1978 (WA). According to the contentions of the Government party the area of land, comprising 2.99 km² approximately 60 km NW of Menzies, over which the proposed tenement is expressed to operate is comprised of a pastoral lease and unallocated crown land. The Government party claims that the grant of the exploration licence is an act that attracts the expedited procedure.

2. On 8 July 2003, the Tribunal made Directions for the conduct of the inquiry.  The Direction in respect of the native title party was:

   ‘(3)      On or before 11 September 2003 the native title party shall provide the following to the Tribunal and each other party:

   (a)a statement of contentions.

   Statement of contentions to include:

   ·a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and

   ·a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement.

   (b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).

   Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and

   (c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.’

3. On 11 September 2003, Tamora Pty Ltd (Dr Barrie Machin) who represents the native title party provided a brief general statement of contentions on behalf of the native title party which were in the same terms as those filed in seven other objection matters.  No documents or statements of evidence as specified in the Directions were provided.  The material was not specific to the concerns of the particular native title party and was not supported by any affidavit or anthropological or historical evidence.

4. On 25 September a Listing Hearing was conducted by the Tribunal and adjourned to 30 October 2003.  At the adjourned hearing there was no appearance from the native title party.  The Government party and the grantee party requested that an inquiry proceed on the papers.  Despite attempts made by the Tribunal to ascertain the intentions of the native title party there has been no satisfactory response.

5. On 15 January 2004, the Tribunal sent a letter to Dr Barrie Machin, Mr Dion Meredith, Mr Fabian Tucker and Mr Cyril Barnes, all of whom at various times have represented the Wongatha claimants in objection inquiries, which indicated to the native title party that there appeared to be non compliance with the Directions and that in any event there appeared to be insufficient evidence to uphold the objection.  The native title party was given until 30 January 2004 to comply, and failed to do so.

Conclusion

1. In light of this I consider that there has been non-compliance with the Directions and it follows that the objection should be dismissed pursuant to s 148(b) of the Act for this non compliance. In the alternative and in any event, having regard to the material before me, I am not satisfied that there is sufficient or adequate evidence to uphold the objection. No specific reference is made to the particular concerns of the native title party in relation to the act. Nor has any specific reference been made to s 237 of the Act in the submissions of the native title party.

Decision

1. The applicant (native title party) has failed to comply with a Direction by the Tribunal and accordingly the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
10 February 2004