Elsa Derschow & Others on behalf of Palyku; Johnson Taylor & Others on behalf of Njamal/Western Australia/Tantalumx Pty Ltd
[2011] NNTTA 106
•17 June 2011
NATIONAL NATIVE TITLE TRIBUNAL
Elsa Derschow & Others on behalf of Palyku; Johnson Taylor & Others on behalf of Njamal/Western Australia/Tantalumx Pty Ltd, [2011] NNTTA 106 (17 June 2011)
Application Nos: WO09/868, WO09/920, WO09/921
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Elsa Derschow & Others on behalf of Palyku (WC99/14) (WO09/868, WO09/921)
-and-
Johnson Taylor & Others on behalf of Njamal (WC99/8) (WO09/920) (native title parties)
-and-
The State of Western Australia (Government party)
-and-
Tantalumx Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 18 April 2011
Date of reasons: 17 June 2011
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications 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 Lea Notte, Yamatji Marpla Aboriginal Corporation
Representative of the
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Chris Clegg, Statewide Mining & Advisory Services Pty Ltd
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 15 July 2009 (WO09/868) and 29 July 2009 (WO10/920, WO10/921) the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E46/788 and E46/789 to Tantalumx Pty Ltd (‘the grantee party’) and included in the notices a statement that it considered that the grants attracted the expedited procedure.
On 16 November 2009, Elsa Derschow & Others on behalf of Palyku – Native Title Claim No. WC99/14, registered on 2 August 1999 (‘a native title party’) made an expedited procedure objection application to the Tribunal in relation to E46/788 (WO09/868) and on 27 November 2009, made an expedited procedure objection application to the Tribunal in relation to E46/789 (WO09/921).
On 27 November 2009, Johnson Taylor & Others on behalf of Njamal – Native Title Claim No. WC99/8, registered on 3 June 1999 (‘a native title party’) also made an expedited procedure objection application to the Tribunal in relation to E46/789 (WO09/920).
Relevant facts
At a status conference on 11 February 2011, the grantee party advised that they would not accept some of the clauses within the Alternative Heritage Agreement. Parties were asked to continue negotiations and on this basis the native title parties requested an eight week variation to directions. On 11 February 2011, I approved the native title parties’ request to amend directions and imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Act in the event of non-compliance by the native title parties by the due date, 18 April 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).
Neither contentions nor evidence have been received from the native title parties by the due date 18 April 2011 and no explanation has been provided for the failure to comply with the Tribunal’s directions despite the native title parties having been informed of the possible consequences of a failure to comply. The springing order applied has resulted in the dismissal of WO09/868, WO09/920 and WO10/921.
Decision
Expedited procedure objection applications WO09/868, WO09/920 and WO09/921 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).
Hon C J Sumner
Deputy President
17 June 2011
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