David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Mount Resources Pty Ltd

[2009] NNTTA 154

NATIONAL NATIVE TITLE TRIBUNAL

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Mount Resources Pty Ltd, [2009] NNTTA 154 (20 November 2009)

Application Nos:               WO09/38, WO09/39, WO09/40

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

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

-and-

The State of Western Australia (Government party)

-and-

Mount Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               12 November 2009

Date of reasons:                 20 November 2009

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in event of non-compliance – objection applications dismissed.

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

Cases:David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Errawarra Pty Ltd, NNTT WO08/1189, WO08/1211, [2009] NNTTA 139 (28 October 2009), Hon C J Sumner

Representative of the        

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

Representatives of the      Ms Claire Malavaux, Department of Mines and Petroleum

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

Representative of the        

grantee party:  Mr Gary Billing, Mount Resources Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 8 October 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licences E46/783, E46/784 and E46/785 (‘the proposed licences’) to Mount Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On 6 February 2009, 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 expedited procedure objection applications to the Tribunal in relation to E46/783 (WO09/38), E46/784 (WO09/39) and E46/785 (WO09/40).

3. On 24 February 2009 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 9 June 2009. The directions contained a statement that the objections may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the applications or to comply with a direction of the Tribunal.

4. At the status conference on 10 June 2009, the grantee party representative, Mr Gary Billing indicated that the grantee party will sign the alternative Nyiyaparli agreement and return it to the native title party for execution and consequent withdrawal of the objection application.

5. Due to delays in formalising the execution of the agreement on the part of the grantee party, two requests to amend the dates for compliance with directions were approved by the Tribunal.  On 21 August 2009, a third request for additional time was made by the native title party on the basis that the agreement had not been fully executed by the grantee party. The Government party opposed the request stating that there was an agreement in principle when the previous request for amended directions was made and there appeared to have been little progress in the interim. On 8 October 2009, I amended directions requiring native title party compliance on or before 19 October 2009.

1. The Government party complied with the amended directions by its due date, but no contentions, evidence or submissions were received from the native title party. At the listing hearing on 29 October 2009, the native title party advised that it had not received the fully executed Cost Schedule page which Mr Billing indicated had been forwarded to the native title party. The native title party requested a two week adjournment to allow Mr Billing to seek instructions as to whether the grantee party would be willing to re-execute the relevant pages in the agreement. The Government party supported the application and further requested that a springing order be imposed. No party opposed the request.   

2. Accordingly, I amended directions on 29 October 2009, requiring native title party compliance by close of business on 12 November 2009. I also considered it appropriate to make a springing order, automatically dismissing the objections pursuant to s 148(b) of the Act in the event of non-compliance by the due date. In making the decision to impose the springing order I relied on the cases cited in David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Errawarra Pty Ltd, NNTT WO08/1189, WO08/1211, [2009] NNTTA 139 (28 October 2009) at [6]-[7]. The native title party has failed to comply by the due date and made no submissions prior to the due date as to its inability to comply, despite being aware of the consequences of the springing order.

Decision

1. Expedited procedure objection applications WO09/38, WO09/39 and WO09/40 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President

20 November 2009