Eva J Connors on behalf of the Eastern Guruma People/Western Australia/Consolidated Iron Pty Ltd

[2007] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Eva J Connors on behalf of the Eastern Guruma People/Western Australia/Consolidated Iron Pty Ltd, [2007] NNTTA 59 (16 July 2007)

Application No:        WO06/356

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Eva J Connors on behalf of the Eastern Guruma People WC97/89 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Consolidated Iron Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:     15 June 2007
Date of Reasons:      16 July 2007

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 Act 1993 (Cth) s 148(b)

Cases: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:  Ms Natalie Faas, Consolidated Minerals Ltd

Representative of the  

Government party:   Mr Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 19 July 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1521 (‘the proposed licence’) to Consolidated Iron Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 5 August 2006, Eva J Connors on behalf of Eastern Guruma People (WC97/89 – registered from 21 October 1997) (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. The Tribunal made directions on 22 August 2006 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 19 March 2007. 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.

2. At the first preliminary conference convened on 5 September 2006, the grantee party representative, Mr Peter Davies, advised that the grantee was prepared to consider the alternative heritage agreement preferred by the Eastern Guruma People and sought further time to review that agreement.

3. Further discussions occurred between the parties at adjourned preliminary conferences convened by the Tribunal on 10 October 2006, 31 October 2006 and 14 November 2006.  At the latter conference Mr Davies advised that his client was not willing to sign the agreement proposed by the Eastern Guruma People and requested that the matter proceed to inquiry.  

4. In response to the grantee party’s request, the representative for the Eastern Guruma People, Mr Jerome Frewen, requested that compliance dates not be brought forward as his clients would be engaged in Law Business until February 2007 and be unable to submit contentions and evidence prior to March as a consequence.  The Government and grantee parties accepted this, and compliance dates remained as originally set.

5. 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 licence.  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.

6. The Government party has complied with directions and I infer from the lack of submissions from the grantee party that it intends to rely on the Government party’s contentions.  No submissions were forthcoming from the native title party by the due date.

7. On 13 April 2007, I convened a directions hearing at which 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 with the determination of non-exclusive possession native title and the process of establishing the structure for the Wintawari Guruma Aboriginal Corporation.  Mr Frewen also submitted that the native title party had been unable to comply prior to the determination as its senior spokespersons had been engaged in Law Business.  As a consequence, Mr Frewen argued, the native title party had not had the capacity to provide either contentions or evidence in this matter.  

8. The Government party initially 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. However, as the grantee party was prepared to allow the native title party further time in which to lodge its submissions, the Government party withdrew its application.

9. Given that neither the Government nor grantee party objected I allowed the additional time requested, requiring native title party compliance on or before 25 May 2007. However, I did note the Government party’s request to dismiss the objection application pursuant to s 148(b) of the Act and also noted that it would be taken into consideration if there was again a failure to comply by the native title party.

10. On 15 June 2007, past the time by which the native title party was due to comply, I convened a further directions hearing at the native title party representative’s request. As no contentions or evidence had been received by this date, 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 representative for the Eastern Guruma People, Mr Jerome Frewen, was not in attendance and made no submissions prior to the hearing requesting additional time to comply.

Conclusion

1. 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.  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

1. The applicant (native title party) has failed to comply with a Direction by the Tribunal and accordingly the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
16 July 2007