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

[2007] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Eva J Connors on behalf of the Eastern Guruma People/Western Australia/Megaworld Pty Ltd, [2007] NNTTA 43 (28 May 2007)

Application No:                 WO06/376

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-

Megaworld Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place  Perth
Date of dismissal:              23 March 2007
Date of reasons:                 28 May 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:Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner

Representative of the

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

Representative of the

grantee party:  Mr Daniel Matich, D & L Tenement Services

Representative of the        

Government party:           Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 16 August 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E47/1496 to Megaworld Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 21 August 2006, Eva J Connors on behalf of Eastern Guruma People (‘the native title party’) made an expedited procedure objection application to the Tribunal.

3. The Tribunal made directions on 6 September 2006 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 16 April 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.

4. At the first preliminary conference convened on 19 September 2006, the grantee party representative, Mr Daniel Matich, advised that although his client had offered the Pilbara Regional Standard Heritage Agreement (RSHA) to the native title party, he was willing to consider the native title party’s preferred Alternative Heritage Agreement (AHA).

5. Further discussions relating to the AHA occurred between the parties at adjourned preliminary conferences convened by the Tribunal on 31 October and 21 November 2006.  At the latter conference Mr Matich advised that his client was not willing to sign the Eastern Guruma AHA and requested that the matter proceed to inquiry.

6. Accordingly, parties were advised that I would amend the directions for the native title party to comply four weeks after the objection closing date (or four weeks after an inquiry has been requested in circumstances where the closing date has passed).  This was in accordance with the Tribunal’s practice to bring compliance dates forward to eliminate the standard 16 week negotiating period in matters where it is clear that agreement cannot be reached (see Procedures under the Right to Negotiate Scheme – 27 January 2005 (paras 3.8.2, 3.9.3) website act/procedures and guidelines) paras 3.8.2, 3.9.3)).  As the closing date for the objection was 18 December 2006 the amended directions would have required native title party compliance on or before 15 January 2007.  The native title party representative requested that native title party compliance be set for March 2006, as he would be unable to seek instructions from his clients owing to ‘Law business’.  With the consent of the grantee and Government parties, I allowed the additional time requested and required native title party compliance on or before 13 March 2007.

7. The Government party 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 from the native title party were forthcoming by the due date.

8. On 23 March 2007 I convened a Listing Hearing at which the Government party, supported by the grantee party, made application to dismiss the objection application pursuant s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The representative for the Eastern Guruma People, Mr Jerome Frewen, was not in attendance, made no submissions prior to the hearing requesting additional time to comply and has provided no explanation of the failure to comply.

9. It has been clear to the Eastern Guruma People since at least 21 November 2006 that there was no prospect of a mutually agreed outcome.  I find that 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 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 Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner (at [12]).

Decision

1. The expedited procedure objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
28 May 2007