Dickey Cox on behalf of the Noonkanbah People/Western Australia/United Kimberley Diamonds NL
[2006] NNTTA 117
•11 August 2006
NATIONAL NATIVE TITLE TRIBUNAL
Dickey Cox on behalf of the Noonkanbah People/Western Australia/United Kimberley Diamonds NL, [2006] NNTTA 117 (11 August 2006)
Application No: WO06/108
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Dickey Cox on behalf of the Noonkanbah People – WC98/9 (native title party)
-and-
The State of Western Australia (Government party)
-and-
United Kimberley Diamonds NL (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 11 August 2006
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to proceed with application – failure to comply with directions – objection application dismissed.
Legislation:Native Title Act 1993 (Cth) s 148(b)
Cases:Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5 [2005] NNTTA 59 (23 August 2005), Hon C J Sumner
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
grantee party: Mr Matthew Clohessy, Emerald Tenement Services
Representatives of the
Government party: Mr Greg Abbott, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 15 February 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E04/1514 to United Kimberley Diamonds NL, and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.
On 14 March 2006 Dickey Cox on behalf of Noonkanbah – Native Title Claim No. WC98/9 registered on 3 March 1998 (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.
The proposed licence comprises an area of some 117.12 square kilometres situated 71 kilometres westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley, and is overlapped 60.73 per cent by the registered claim of the native title party
Relevant Facts
The Tribunal made directions on 24 March 2006 for 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 16 October 2006. 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.
During preliminary conferences convened by the Tribunal on 11 April and 2 May 2006, the representative for the grantee party, Mr Matthew Clohessy, indicated that the grantee was prepared to consider negotiating an agreement with the native title party. However, at a further adjourned conference on 30 May 2006, at which all parties were represented, Mr Clohessy advised that his client requested that the objection proceed to inquiry on the basis that agreement proposed by the native title party was not acceptable. Revised dates for compliance were suggested in accordance with current Tribunal practice to bring compliance dates forward to eliminate the standard 16 week negotiating period in matters such as this where it is clear that agreement cannot be reached. Proposed dates required compliance by the Government party on or before 10 July 2006, native title party compliance on or before 17 July 2006 and that for the grantee by 24 July 2006. Formal directions were not made but all parties were aware of those revised dates and the Government party has submitted documents in accordance with those dates.
On 19 July 2006 it became clear that the Tribunal had not issued formal notification of the revised dates for compliance and in order to accord procedural fairness to all parties dates were further revised with the agreement of the Government and grantee parties, permitting a three week extension of time for compliance. Native title party compliance was now required on or before 9 August 2006. On 25 July 2006 all parties were notified in writing of the amended directions, including the date of the Listing Hearing. No submissions were lodged by the native title party by the due date for compliance and no comment made in relation to the revised date.
On 10 August 2006 the Tribunal received a written request from the representative for the native title party, Mr Jerome Frewen, seeking an extension of the time for compliance on the basis that he would not be able to visit the native title party to seek instructions and obtain affidavit evidence until September 2006.
On 11 August 2006, I convened a Listing Hearing, at which the native title party was unrepresented. The Government and grantee parties advised that they did not agree to a further extension of the time for compliance by the native title party on the basis that the objection application was lodged on 14 March 2006 and ample time had been provided to provide contentions and evidence to support that application. The Government party supported by the grantee party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of a failure to proceed with the application and non-compliance with the Tribunal’s directions by the native title party.
It has been clear to the native title party since 30 May 2006 that there was no prospect of a mutually agreed outcome. I find that the native title party has failed within a reasonable time to proceed with the applications and to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply. It is incumbent upon the native title party to be prepared and able to prosecute its own objection from the time that application is lodged. In making this decision I adopt relevant findings in Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5 [2005] NNTTA 59 (23 August 2005), Hon C J Sumner at [12] including that the Tribunal must deal with expedited procedure objection applications as speedily as possible.
Decision
Expedited procedure objection application WO06/108 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Hon C J Sumner
Deputy President
11 August 2006
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