David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Montezuma Mining Co. Ltd

[2010] NNTTA 127

NATIONAL NATIVE TITLE TRIBUNAL

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Montezuma Mining Co. Ltd, [2010] NNTTA 127 (11 August 2010)

Application No:                 WO10/410

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

-and-

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

David Stock & Others on behalf of the Nyiyaparli People – WC05/6 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Montezuma Mining Co. Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               2 August 2010

Date of reasons:                 11 August 2010

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

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the        

native title party:              Ms Samantha Rosenfeld, Pilbara Native Title Service

Representatives of the      Ms Clyde Lannan, Department of Mines and Petroleum

Government party:           Mr Greg Abbott, Department of Mines and Petroleum

Representative of the        

grantee party:  Mr Michael Giles, Montezuma Mining Co. Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 18 November 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2467 (‘the proposed licence’) to Montezuma Mining Co. Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 18 March 2010, David Stock & Others on behalf of the Nyiyaparli People - Native Title Claim No. WC05/6 registered on 29 November 2005 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

3. On 9 March 2010, Billy Atkins and Others on behalf of the Gingirana People also made an expedited procedure application to the Tribunal in relation to the proposed licence (WO10/376).  The Gingirana People’s objection is still before the Tribunal.

Relevant facts

1. On 12 April 2010, the Tribunal made directions 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 native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 12 July 2010. 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. At a status conference on 9 June 2010 the Tribunal was advised by the grantee party that it was only prepared to enter into the Regional Standard Heritage Agreement (‘RSHA’) in relation to the proposed licence and requested that the matter proceed to inquiry.

3. The Government party has complied with directions and the grantee party has advised it will rely on the submissions of the State.  Neither contentions nor evidence have been received from the native title party.

4. A listing hearing was held on 29 July 2010, at which the native title party was not represented. The Government party requested dismissal pursuant to s 148(b) of the Act on the basis that the native title party had failed to comply with directions. The grantee party supported the request for dismissal.

5. On 30 July 2010, the native title party claim lawyer provided email advice to the Tribunal outlining discussions directly with grantee party suggesting the company has no issues with native title party preferred agreement based on previous matters involving the same parties. As the grantee party representative was not available for clarification on this issue, the native title party requested the dismissal request be adjourned until the grantee party representative became available. The native title party has made no application to extend their time for compliance.

6. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in these matters. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application.

7. I find that the native title party has failed to comply with the Tribunal’s directions having submitted no statement of contentions or evidence, has provided no reason for its failure to comply, and has made no requests for further time in which to comply, despite having been informed of the possible consequences of a failure to comply.  I further observe that the Government party will impose a condition on grant whereby the Nyiyaparli People will be provided with the option of requiring that the RSHA be executed by the grantee party.  The condition should ensure that the native title party’s heritage concerns are ameliorated.

8. The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO10/376, relating to the Gingirana People, is finalised.

Decision

1. Expedited procedure objection application WO10/410 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President

11 August 2010