Evelyn Gilla & Ors on behalf of Yugunga-Nya/Western Australia/Agricola Resources Pty Ltd

[2010] NNTTA 110

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Ors on behalf of Yugunga-Nya/Western Australia/Agricola Resources Pty Ltd, [2010] NNTTA 110 (22 July 2010)

Application Nos:             WO09/983, WO09/1002, WO09/1003, WO09/1004, WO09/1005, WO09/1006, WO09/1007, WO10/73, WO10/139

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 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Agricola Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            19 July 2010
Date of reasons:              22 July 2010

Catchwords:  Native title – future acts – proposed grant of prospecting and exploration licences – 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

Representatives of the

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

Representatives of the    

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

Representative of the

grantee party:                 Mr Steve Milner, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On the dates specified in the attached schedule, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant various prospecting and exploration licences to Agricola Resources Pty Ltd (‘the grantee party’) and in each case included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On the dates specified in the attached schedule Evelyn Gilla and Ors on behalf of Yugunga-Nya – native title claim no WC99/46, registered from 12 June 2000 (‘the native title party’) made expedited procedure objection applications to the Tribunal.

Relevant facts

1. At a preliminary conference on 2 February 2010 for objection applications WO09/983, and WO09/1002 to WO09/1007 inclusive the Tribunal was advised that the grantee party and native title party intended to negotiate an agreement to facilitate disposal of the objections.  Objection applications WO10/73 and WO10/139 were later joined to the same proceedings.

2. The Tribunal made further directions in relation to the objections on 10 May 2010 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 July 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.

3. At a status conference on 26 May 2010, it became apparent that negotiations had not been successful and the grantee party representative advised that the grantee party wished to rely on the Regional Standard Heritage Agreement (‘RSHA’) and requested that the matters proceed to inquiry.  This request was supported by the Government party.

1. Both the Government party and the grantee party have complied with directions. Neither contentions nor evidence have been received from the native title party.

2. At the listing hearing held on 15 July 2010, at which the native title party was unrepresented, the Government party requested dismissal pursuant to s 148(b) on the basis that the native title party had failed to comply with a direction of the Tribunal. This request was supported by the grantee party. On 16 July 2010, in response to advice from the Tribunal case officer about the outcome of the listing hearing, the native title party requested an extension to compliance dates on the basis that an agreed outcome was possible. The native title party did not provide any reasons for its earlier failure to comply.

3. 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 application.

4. The native title party has not complied with a direction of the Tribunal despite notice that the grantee party had requested the objection applications proceed to inquiry on 26 May 2010.  Further, the native title party made no application in relation to its impending compliance date until almost two weeks after that date had passed.  I further observe that by way of the Government party’s condition on grant, the Yugunga-Nya People 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 obligated to sign that agreement or breach the conditions of grant.  The condition should ensure that the native title party’s heritage concerns are ameliorated.

5. I find that the native title party has failed within a reasonable time to proceed with its objections and to comply with the Tribunal’s directions having submitted no statements of contentions or evidence despite having been informed of the possible consequences of a failure to comply.

Decision

1. Expedited procedure objection applications WO09/983, WO09/1002, WO09/1003, WO09/1004, WO09/1005, WO09/1006, WO09/1007, WO10/73 and WO10/139 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

Tenement No.	Date of Govt. Party Notification (s29 Notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party/ies	Native Title Party	Date Directions Made	Dismissal Date
E20/705	12/8/2009	WO09/983	14/12/2009	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
P20/2100	12/8/2009	WO09/1002	14/12/2009	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
P20/2101	12/08/2009	WO09/1003	14/12/2009	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
P20/2103	12/08/2009	WO09/1004	14/12/2009	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
P20/2104	12/08/2009	WO09/1005	14/12/2009	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
P20/2105	12/08/2009	WO09/1006	14/12/2009	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
P20/2107	12/08/2009	WO09/1007	14/12/2009	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
E20/703	23/09/2009	WO10/73	25/01/2010	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010
E20/704	07/10/2009	WO10/139	08/02/2010	Agricola Resources Pty Ltd	Evelyn Gilla & Ors on behalf of Yugunga-Nya	10/05/2010	19/07/2010