Dickey Cox & Others on behalf of the Noonkanbah People/Western Australia/Nea Kameni Pty Ltd

[2008] NNTTA 85

NATIONAL NATIVE TITLE TRIBUNAL

Dickey Cox & Others on behalf of the Noonkanbah People/Western Australia/Nea Kameni Pty Ltd, [2008] NNTTA 85 (7 July 2008)

Application No:                 WO07/271

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-

Nea Kameni Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date of dismissal:               30 June 2008
Date of reasons:                 7 July 2008

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 event of non-compliance objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b), 150

Cases:Dickey Cox on behalf of the Noonkanbah People/Western Australia/United Kimberley Diamonds NL, NNTT WO06/108 [2006] NNTTA 117 (11 August 2006), Hon C J Sumner

Representative of the

native title party:              Mr Jerome Frewen, Desert Management Pty Ltd      

Representatives of the      Mr Greg Abbott, Department of Industry and Resources

Government party:           Ms Violet Jacobs, Department of Industry and Resources

Representative of the

grantee party:                    Mr Gregory Pooley, Nea Kameni Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 11 April 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1609 (‘the proposed licence’) to Nea Kameni Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 12 April 2007, Dickey Cox & Others on behalf of the Noonkanbah People (WC98/9 – registered from 3 March 1998) (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. On 3 May 2007 Hon C J Sumner, Deputy President, was appointed Member and accepted the expedited procedure objection application. On this date the Tribunal also made directions 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 10 December 2007.

2. Despite considerable delays and difficulties in contacting the grantee representative since the first preliminary conference on 15 May 2007, the grantee representative, Mr Gregory Pooley, indicated at an adjourned status conference on 11 October 2007 that the grantee did not intend conducting activities beyond established pastoral tracks for at least the first two years of the term of the proposed licence, and as such would prefer to enter into an agreement with the native title party at that time. The Tribunal proposed mediation assistance pursuant to s 150 of the Act, which was agreed to by all parties, and accordingly Deputy President Sumner amended compliance dates on 2 November 2007 requiring compliance by the Government party on or before 4 February 2008, and that of the native title party by 11 February 2008.

3. The Tribunal conducted five s 150 mediation conferences between October and December 2007, however, parties were unable to resolve these issues and the s 150 conference was terminated by the Tribunal on 14 February 2008 on the basis that no agreement could be reached.

4. On 23 January 2008 Mr Pooley requested a further extension of time in order to seek legal advice regarding the Noonkanbah People’s preferred agreement and with the agreement of all parties Deputy President Sumner further amended compliance dates, requiring that each parties’ submissions be made commencing with Government party documents on or before 3 March 2008.

5. At an adjourned status conference on 13 February 2008, the grantee representative requested that the matter proceed to inquiry. The native title party representative, Mr Jerome Frewen, sought an extension of time to late April 2008 to allow the collection of evidence and affidavits for the conduct of the inquiry. All parties agreed to the request and accordingly Deputy President Sumner allowed another amendment to the directions of 14 February 2008, requiring compliance by the Government party on or before 28 April 2008, by the native title party on or before 5 May 2008, and by the grantee party on or before 12 May 2008.

6. On 3 April 2008 I was appointed as the Member to conduct the Inquiry.  The Government party complied with amended directions by 23 April 2008 but the native title party failed to comply with directions and did not provide any explanation for that failure.

7. On 15 May 2008, the Tribunal conducted a listing hearing at which time the State made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with the Tribunal’s directions by the native title party. Mr Frewen opposed that application and sought an extension of time for compliance on the basis that the wet season had precluded the possibility of a visit by the native title party to the area. He advised that an on country meeting had been scheduled for 18 June 2008. The grantee party representative did not have instructions from his client to support or oppose either proposal. Mr Frewen assured me that he could comply within the proposed extended time. In light of the lengthy delays and eventual non-compliance by the same native title party in other similar matters (see Dickey Cox on behalf of the Noonkanbah People/Western Australia/United Kimberley Diamonds NL, NNTT WO06/108 [2006] NNTTA 117 (11 August 2006), Hon C J Sumner), (‘United Kimberley Diamonds’) I considered it appropriate to impose a springing order which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Act if there was non-compliance by close of business on the due date. On that basis I extended the native title party’s time for compliance until on or before 30 June 2008.

Conclusion

The native title party failed to comply with the direction by 30 June 2008. No explanation for the failure or application for a variation of the order was received from the native title party.

Decision

1. Expedited procedure objection application WO07/271 is dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Daniel O’Dea
Member
7 July 2008