Cyril Barnes on behalf of Wongatha/Western Australia/South Boulder Mines Ltd

[2004] NNTTA 50

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes on behalf of Wongatha/Western Australia/South Boulder Mines Ltd; [2004] NNTTA 50 (21 June 2004)

Application No:        WO03/817

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-

The State of Western Australia (Government party)

-and-

South Boulder Mines Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon CJ Sumner, Deputy President
Place:  Perth
Date of dismissal:            3 June 2004  
Date of reasons:              21 June 2004       

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection application – failure within a reasonable time to proceed with objection application – failure to comply with Directions – objection application dismissed.

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

Representative of the      Dr Barrie Machin, Tamora Pty Ltd
native title party:             Mr Dion Meredith, North East Independent Body

Representative of the
grantee party:                 Mr Brenton Parry, Western Tenement Services

Representative of the
Government party          Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On the 4 June 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E37/727 and E38/1502 (‘the proposed licences’) to South Boulder Mines Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 3 October 2003, Cyril Barnes on behalf of Wongatha (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. E37/727 concerns an area of some 9.03km², approximately 38 kilometres north-east of Leonora.  E38/1502 covers an area of 57.72 km² and is located around 85 kilometres north-west of Cosmo Newberry Mission.  In both cases, the registered claim by the native title party covers 100% of the notice area.

2. On 23 October 2003, the Tribunal made Directions for the conduct of the inquiry.  The Direction in respect of the native title party was as follows:

   ‘(3)On or before 2 February 2004 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. A request for an amendment to the Directions was made at the Status Conference of 17 December 2003 and granted on 24 December 2003.  The amendment extended the time for the native title party to comply to on or before 2 March 2004.  A further request to amend Directions was approved on 20 February 2004, which extended the date for compliance by the native title party to 5 April 2004.

4. An adjourned Status Conference was held on 28 April 2004 by which time the native title party contentions and evidence were overdue.  A third request for an extension to the time for compliance was granted on 7 May 2004, native title party compliance now being due on or before 17 May 2004.

5. The Government party complied with Directions by 10 February 2004. The Tribunal has received no contentions, documentary evidence, statement of evidence, nor any other submission from the native title party in accordance with Direction 3. All parties were advised in writing of the due dates for compliance on each occasion that an extension of time in which to comply was granted. The written Directions sent to parties point out that an objection application may be dismissed pursuant to s 148(b) of the Act if a native title party fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

6. During the Listing Hearing of 3 June 2004 Dr Machin for the native title party indicated he was having difficulties obtaining affidavit evidence and that further time to comply would be advantageous to enable him to try to get some affidavits.  Both the Government party and the grantee party representative opposed this request and sought to have the application dismissed for non-compliance.

Decision

1. Being satisfied that the applicant (native title party) failed within a reasonable time to proceed with its expedited procedure objection application and to comply with directions of the Tribunal, the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
21 June 2004