Delores Cheinmora & Others on behalf of Balanggarra/Western Australia/Swancove Enterprises Pty Ltd

[2011] NNTTA 93

NATIONAL NATIVE TITLE TRIBUNAL

Delores Cheinmora & Others on behalf of Balanggarra/Western Australia/Swancove Enterprises Pty Ltd, [2011] NNTTA 93 (27 May 2011)

Application No:                 WO10/1513

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

-and-

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

Delores Cheinmora & Others on behalf of Balanggarra – WC99/47 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Swancove Enterprises Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              25 May 2011
Date of reasons:                 27 May 2011

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

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

Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103

Representative of the

native title party:               Ms Ania Maszkowski, Kimberley Land Council

Representative of the        

Government party:           Mr Dennis Jacobs, Department of Mines and Petroleum

Representative of the        

grantee party:  Ms Sherry Hingston, Iron Mountain Mining

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 14 July 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E80/4439 to Swancove Enterprises 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 November 2010, Delores Cheinmora & Others on behalf of Balanggarra – Native Title Claim No WC99/47, registered from 9 December 2004 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. The Tribunal made directions on 21 December 2010, 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 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 the status conference held on 9 February 2011, the grantee party requested the matter proceed to inquiry as they wished to rely on the Regional Standard Heritage Agreement (‘RSHA’).  On 17 March 2011, I approved a request from the native title party to extend compliance dates to allow additional time to collect and submit evidence for an inquiry.

3. A listing hearing was convened on 12 May 2011 at which the native title party requested a four week extension to compliance dates to allow further time to collect and submit evidence for an inquiry. The Government party and grantee party supported the extension and requested a springing order be placed on the native title party compliance date due to the time already afforded for compliance. I approved the extension and imposition of a springing order on 16 May 2011. The springing order imposed on the native title party has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Act if there is non-compliance by the native title party by the due date, being 25 May 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

4. The Government party and grantee party have complied with directions.  Neither contentions nor evidence has been received from the native title party and no explanation has been offered for the failure to comply with the Tribunal’s directions.  The springing order, applied to the Tribunal directions on 16 May 2011, has resulted in dismissal of the application.

Decision

1. Expedited procedure objection application WO10/1513 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
27 May 2011