Eva J Connors on behalf of Eastern Guruma People (Wintawari Guruma Aboriginal Corporation/Western Australia/Cazaly Iron Pty Ltd
[2007] NNTTA 71
•21 August 2007
NATIONAL NATIVE TITLE TRIBUNAL
Eva J Connors on behalf of Eastern Guruma People (Wintawari Guruma Aboriginal Corporation/Western Australia/Cazaly Iron Pty Ltd, [2007] NNTTA 71 (21 August 2007)
Application Nos: WO06/304, WO06/358
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Eva J Connors on behalf of Eastern Guruma People – WC97/89/Wintawari Guruma Aboriginal Corporation (native title party)
-and-
The State of Western Australia (Government party)
-and-
Cazaly Iron Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner
Place: Perth
Date of dismissal: 10 August 2007
Date of reasons: 21 August 2007
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with Directions – objection applications dismissed.
Legislation:Native Title Act 1993 (Cth) s 148(b)
Case:Eva J Connors on behalf of the Eastern Guruma People/Western Australia/Megaworld Pty Ltd, NNTT WO06/376, [2007] NNTTA 43 (28 May 2007), Hon CJ Sumner
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
grantee party: Mr Shannon McMahon, McMahon Mining Title Services
Representative of the
Government party: Ms Jan Mason, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 5 July 2006 and 19 July 2006 respectively, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E47/1617 and E47/1560 (‘the proposed licences’) to Cazaly Iron Pty Ltd (‘the grantee party’) and included in the notices a statement that it considered that the grants attracted the expedited procedure.
On 11 July 2006 and 5 August 2006 respectively, Eva J Connors on behalf of Eastern Guruma People (WC97/89, registered from 21 October 1997) (‘the native title party’) made expedited procedure objection applications to the Tribunal (designated WO06/304 for E47/1617 and WO06/358 for E47/1560).
Relevant Facts
The Tribunal made directions on 11 August 2006 (for WO06/304) and 22 August 2006 (for WO06/358) 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 native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 5 March 2007 (for WO06/304) and 19 March 2007 (for WO06/358). 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.
At the first preliminary conference for WO06/304 convened on 29 August 2006, the grantee party representative, Mr Shannon McMahon, requested that the native title party representative send a copy of the alternative heritage agreement preferred by the Eastern Guruma People for his consideration. At the first preliminary conference for WO06/358 convened on 5 September 2006 the grantee party representative, Mr Shannon McMahon, advised that both of the proposed licenses may be included in the agreement under consideration. Thereafter, both WO06/304 and WO06/358 were convened together.
Following consideration of the agreement and discussions between the native title and grantee parties’ representatives the Tribunal was advised on 18 April 2007 that the grantee party was not willing to sign the alternative heritage agreement proposed by the Eastern Guruma People and requested that the matter proceed to inquiry. Further amendment to directions was proposed by the Government party to enable sufficient time for the native title party to prepare contentions and collect affidavit evidence. The grantee party agreed with the amendment. The native title party was absent from the conference and was thereafter advised of the proposed amendments and provided with opportunity to respond. The Tribunal did not receive a response from the native title party representative and proceeded to amend directions.
On 1 March 2007, the Federal Court issued a determination of native title over the majority of the application area, known as Part A, recognising the Eastern Guruma People as holders of non-exclusive possession native title. The remaining undetermined area is known as Part B and covers the townsite of Tom Price. The Part A determined area encompasses the proposed licences. The Wintawari Guruma Aboriginal Corporation (the Registered Native Title Body Corporate) was determined to hold that native title on trust for the Eastern Guruma People and is now the native title party in these proceedings.
The Government party complied with directions which were submitted on 23 April 2007 and 3 May 2007. Submissions were not made by the native title party by its amended due date of 14 June 2007 nor by the grantee party by its amended due date of 21 June 2007.
On 28 June 2007, the Tribunal convened a listing hearing at which the native party representative requested a four week extension to comply with the Tribunal’s directions. This extension of time was sought on the basis that the native title party’s attention had been fully occupied with the determination of non-exclusive possession native title and the process of establishing the structure for the Wintawari Guruma Aboriginal Corporation. As a consequence, the native title party had not had the capacity to provide either contentions or evidence in this matter.
The Government party agreed to the request. The grantee party representative agreed to the request but indicated that the grantee party would not support further application for extension of time. The grantee party representative also indicated the grantee party’s intention to submit contentions. Compliance dates were amended accordingly with native title party compliance due on 30 July 2007 and grantee party compliance due on 6 August 2007.
On 9 August 2007, the Tribunal convened an adjourned listing hearing. At this date contentions had not been received from either the native title party or the grantee party but the grantee party representative indicated the grantee party’s intention to rely on the Government’s contentions. The native party representative requested further time to comply with the Tribunal’s directions. This extension of time was sought on the basis that the native title party’s attention had been fully occupied for the previous 2 months with the conduct of heritage surveys in the Pilbara region resulting from extensive mining activity in the north-west of WA. As a consequence, the native title party had not had the capacity to provide either contentions or evidence in this matter. The Government party requested that the objection be dismissed pursuant to s 148(b) of the Act on the grounds that the native title party had failed to comply with a direction of the Tribunal. The native title party requested that the Tribunal convene a directions hearing to consider its request for amendment to compliance dates.
On 10 August 2007, I convened a directions hearing at the native title party representative’s request. The Government party, supported by the grantee party, made a fresh application to dismiss the objection application pursuant to s 148(b) of the Act. Despite having requested the hearing, the native title party representative Mr Jerome Frewen, was not in attendance and made no submissions prior to the hearing.
Conclusion
The native title party has failed to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been afforded additional time to do so and having been informed of the possible consequences of a failure to comply. The native title party has been aware since 18 April 2007 that there was no prospect of an agreement to dispose of the objection. In making this decision, I adopt the Tribunal’s findings, and the cases cited therein, in Eva J Connors on behalf of the Eastern Guruma People/Western Australia/Megaworld Pty Ltd, NNTT WO06/376, [2007] NNTTA 43 (28 May 2007), Hon C J Sumner at para [9].
Decision
The expedited procedure objection applications are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Hon C J Sumner
Deputy President
21 August 2007
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