Cyril Barnes on behalf of Wongatha/Joseph Allen Treacy and Louis Alexander Bell/Western Australia

[2004] NNTTA 10

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes on behalf of Wongatha/Joseph Allen Treacy and Louis Alexander Bell/Western Australia, [2004] NNTTA 10 (3 March 2004)

Application No:        WO03/454

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 Wongatha – WC99/1 (native title party)

-and-

Joseph Allen Treacy and Louis Alexander Bell (grantee party)

-and-

The State of Western Australia (Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date:  3 March 2004

Catchwords:             Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with Directions – objection application dismissed.

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On the 29 January 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P31/1657 to Joseph Allen Treacy and Louis Alexander Bell (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 20 May 2003, Cyril Barnes on behalf of Wongatha (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. On 1 February 2002 the grantee party made an application for the grant of prospecting licence P31/1657.  The prospecting licence concerns an area of some 119.95 hectares, approximately 79 kms east of Menzies.  The registered claim of the native title party covers 100% of the notice area.

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 25 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.’

1. A request for an amendment to the Directions was made and granted on 30 September 2003.  The amendment extended the time for the native title party to comply to 20 November 2003.  A further request to amend Directions was approved on 5 December 2003, which extended the date for compliance by the native title party to 8 January 2004.

2. The grantee party has complied with Directions as has the Government party.  The native title party has not filed any contentions documentary evidence, statements of evidence or other submissions.

3. On 13 February 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 had not been compliance with the Directions and no request for a further extension of time to comply with Directions.  The native title party was given until 20 February 2004 to comply, and failed to do so.

Conclusion

1. In light of these facts 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.

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
3 March 2004