Evelyn Gilla & Ors on behalf of Yugunga-Nya; Albert Little & Others on behalf of Badimia/Western Australia/Richard Forbes Donald-Hill

[2010] NNTTA 104

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Ors on behalf of Yugunga-Nya; Albert Little & Others on behalf of Badimia/Western Australia/Richard Forbes Donald-Hill, [2010] NNTTA 104 (22 July 2010)

Application Nos:      WO10/242, WO10/243

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Evelyn Gilla & Ors on behalf of Yugunga-Nya – WC96/46 (WO10/242) (native title party)

- and -

Albert Little & Others on behalf of Badimia Native Title Claim – WC96/98 (WO10/243) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Richard Forbes Donald-Hill (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            9 July 2010
Date of reasons:              22 July 2010

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – failure within a reasonable time to proceed with objection applications – failure to comply with directions – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases: Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the

native title parties:            Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation

Representative of the        

Government party:           Mr Greg Abbott, Department of Mines and Petroleum

Representative of the

grantee party:  Mr Eamon Cornelius, Western Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 21 October 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E58/381 (‘the proposed licence’) to Richard Forbes Donald-Hill (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. The proposed licence comprises an area of 30.31 square kilometres and is located 60 kilometres north-easterly of Mount Magnet in the Shires of Cue and Mount Magnet.  The proposed licence is overlapped 27.22 per cent by the registered native title claim of the Yugunga-Nya People and 72.23 per cent by the registered native title claim of the Badimia People.

3. On 21 February 2010, Albert Little and Others on behalf of Badimia – native title claim no WC96/98, registered from 4 October 1996, and Evelyn Gilla and Others on behalf of Yugunga-Nya – native title claim no WC99/46, registered from 12 June 2000 (‘the native title parties’) made expedited procedure objection applications to the Tribunal.  The registered native title claim of the Wutha People (WC99/10) also overlaps the proposed licence by 27.77 per cent, however, Wutha has not lodged an objection in relation to it.

Relevant facts

1. On 9 March 2010, the Tribunal made directions 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 parties were to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 21 June 2010. 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 a preliminary conference on 23 March 2010 the Tribunal was advised by the representative for the native title parties that copies of the native title parties’ preferred agreements would be provided to the grantee party for consideration.

3. At an adjourned preliminary conference held on 13 April 2010, the representative for the grantee party requested that the matters proceed to inquiry on the basis that while the grantee party was willing to sign a Regional Standard Heritage Agreement (‘RSHA’) with each native title party, it was not willing to sign a RSHA including third party heritage providers, or to negotiate an alternative agreement with the native title parties. 

4. The Government party has complied with directions and the grantee party has indicated that it will rely on the Government party’s contentions and evidence.  Neither contentions nor evidence have been received from the native title parties.

5. At the listing hearing on 8 July 2010, the representative for the grantee party requested dismissal pursuant to s 148(b) of the Act. Mr Greg Abbott for the Government party supported this and observed that the following condition would be placed on the grant of the proposed licence:

   ‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Yugunga-Nya, the applicants in Federal Court application no. WAD6132 of 1998 (WC99/46), the Wutha, the applicants in Federal Court application no. WAD6064 of 1998 (WC99/10) and the Badimia, the applicants in Federal Court  application no. WAD6123 of 1998 (WC96/98), such request being sent by pre-paid post to reach the Licensee's address, c/- Western Tenement Services, PO Box 428, Greenwood W A 6924 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Yugunga-Nya and/or, Wutha and/or Badimia, as the case may be, the Regional Standard Heritage Agreement endorsed by peak industry groups and Yamatji Land and Sea Council.’

Mr Abbott has subsequently clarified that the above condition on grant recognises that the grantee party had offered a RSHA to all three overlapping native title claim groups prior to notification of the proposed licence under s 29.

1. The representative for grantee party advised that the grantee party would not sign the RSHA with any amended heritage provider details until required to do so by the condition.  The representative for the native title parties made no applications in relation to the grantee party’s request.  On 9 July 2010 I dismissed the objection application.

2. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in these matters. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection application.

3. The native title parties have chosen not to comply with a direction of the Tribunal on the basis that each will accept an RSHA if executed by the grantee party.  However, despite no RSHA correctly signed by the grantee party being forthcoming in the weeks leading up to 21 June 2010, the native title parties submitted neither contentions nor evidence, and have made no application in relation to the impending compliance date.  I further observe that by way of the Government party’s condition on grant, the Badimia and Yugunga-Nya Peoples will be provided with the option of requesting that the RSHA be executed by the grantee party should they wish to do so and that the grantee party will be obliged to sign those agreements or breach the conditions of grant.  The condition should ensure that the native title parties’ heritage concerns are ameliorated.

4. I find that the native title parties have failed within a reasonable time to proceed with the objection applications and 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.

Decision

1. Expedited procedure objection applications WO10/242 and WO10/243 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 July 2010