Douglas J Comeagain on behalf of the Mullewa Wadjari Community/Western Australia/ Swancove Enterprises Pty Ltd
[2008] NNTTA 116
•25 August 2008
NATIONAL NATIVE TITLE TRIBUNAL
Douglas J Comeagain on behalf of the Mullewa Wadjari Community/Western Australia/ Swancove Enterprises Pty Ltd, [2008] NNTTA 116 (25 August 2008)
Application No: WO08/280
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Douglas J Comeagain on behalf of the Mullewa Wadjari Community (WC96/93)
(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: 21 August 2008
Date of reasons: 25 August 2008
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:Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/ Geotech International Pty Ltd, NNTT WO07/828 [2008] NNTTA 41 (4 April 2008), Hon C J Sumner
Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829 [2008] NNTTA 46 (11 April 2008), John Sosso
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Government party: Mr Greg Abbott, Department of Industry and Resources
Representative of the Ms Melissa Greer,
grantee party: Hetherington Exploration & Mining Title Services
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 16 January 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E70/2652 (‘the proposed licence’) 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.
The proposed licence is located ninety-one kilometres north of Mullewa in the Shires of Murchison and Northampton and is entirely overlapped by both the registered native title claim of the Wajarri Yamatji People (WC04/10 – registered from 1 December 2005) and by the registered native title claim of the Mullewa Wadjari Community (WC96/93 - registered from 19 August 1996).
On 1 March 2008 Douglas J Comeagain on behalf of the Mullewa Wadjari Community (‘the Mullewa Wadjari native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence (designated WO08/280). On 29 February 2008 Ike Simpson and Others on behalf of the Wajarri Yamatji also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (designated WO08/295). The latter objection was withdrawn by agreement on 11 August 2008.
Relevant facts
In relation to WO08/280, the Tribunal made directions on 3 April 2008 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 Mullewa Wadjari native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 8 September 2008. 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.
Inquiry and findings
On 15 April 2008 the grantee party representative supported by the Government party requested that the objection proceed to inquiry and that dates for compliance with directions be brought forward to enable this to occur as expeditiously as possible. The Mullewa Wadjari native title party opposed this request but its representative neither attended the Directions Hearing scheduled on 21 April 2008 nor made any submissions to support its position and accordingly I amended directions to require compliance by the native title party by 11 August 2008. The Government and grantee parties have complied with amended directions but to date no submissions have been received from the native title party.
At a Listing Hearing held on 21 August 2008 the native title party representative requested a further two month extension of the time for compliance on the basis that the Mullewa Wadjari native title party had not had an opportunity to provide contentions and evidence for this matter as they had been focused on preparing their connection report and other claims business. The Government party requested that the objection be dismissed pursuant to s 148(b) of the Act for failure by the Mullewa Wadjari native title party to comply with a direction of the Tribunal. The grantee party representative supported the Government party’s application. I declined the request for an extension of time on the basis that objections are supposed to be dealt with in a timely manner; the Mullewa Wadjari native title party has been on notice that no agreement was possible since 15 April 2008; and based on past experience I was not satisfied that compliance would be forthcoming even if an extension of time was granted. The objection was dismissed.
I find that the Mullewa Wadjari native title party has failed to comply with a direction of the Tribunal and has provided no explanation for its failure. In making the decision to dismiss this application for non-compliance I adopt the Tribunal’s findings in Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Geotech International Pty Ltd, NNTT WO07/828, [2008] NNTTA 41 (4 April 2008) at [9]-[10] and Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829, [2008] NNTTA 46 (11 April 2008), John Sosso at [10]-[11].
Decision
The native title party has failed to comply with a direction by the Tribunal and accordingly the objection application WO08/280 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Hon C J Sumner
Deputy President
25 August 2008
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