Evelyn Gilla & Ors on behalf of Yugunga-Nya/Western Australia/Orex Mining Pty Ltd

[2011] NNTTA 216

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Ors on behalf of Yugunga-Nya/Western Australia/Orex Mining Pty Ltd, [2011] NNTTA 216 (23 December 2011)

Application Nos:             WO11/71, WO11/72

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 (WC99/46) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Orex Mining Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            16 December 2011
Date of reasons:              23 December 2011

Catchwords:  Native title – future acts – proposed grant of prospecting licences – expedited procedure 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 party:               Ms Alissa Lovering, Yamatji Land & Sea Council

Representative of the        

Government party:           Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Diya Sequeira, Tenement Administration Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 22 September 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant prospecting licences P51/2691 and P51/2692 to Orex Mining Ltd (the grantee party) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On 24 January 2011, Evelyn Gilla & Ors on behalf of Yugunga-Nya, Native Title Claim No. WC99/46, registered on 12 June 2000 (the native title party) made expedited procedure objection applications to the Tribunal in relation to P51/2691 (WO11/71), P51/2692 (WO11/72).

Relevant facts

1. On 21 February 2011, 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 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 status conference on 14 September 2011, the Government party requested that the objections be dismissed under s 148(b) of the Act as the native title party had failed to comply with the Tribunal directions on or before 18 July 2011. The native title party was advised later that day of the Government Party’s request and then requested a six week variation to directions to allow evidence and contentions to be finalised.

3. On 20 September 2011, I approved a variation of the directions and asked that parties be advised that dismissal of the objections was likely if the native title party failed to comply on or before 24 October 2011 unless under special circumstances.

4. Neither contentions nor evidence have been received from the native title party by the due date of 24 October 2011 and no explanation was provided for the failure to comply with the Tribunal’s directions despite the native title party having been informed of the possible consequences of a failure to comply.

1. At a Listing Hearing on 10 November 2011 the Government and grantee party requested dismissal of the objection applications pursuant to s 148(b) of the Act following the failure of the native title party to comply with the Tribunal directions by 24 October 2011. The native title party representative was not in attendance but was advised of this request later that day. No response was received from the native title party. On 16 December 2011 I dismissed the objection applications.

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 this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application.

Decision

1. Expedited procedure objection applications WO11/71 and WO11/72 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
23 December 2011