Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/Anuman Holdings Pty Ltd

[2012] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/Anuman Holdings Pty Ltd, [2012] NNTTA 4 (27 January 2012)

Application No:                 WO10/1678, WO10/1679

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

-and-

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

Evelyn Gilla & Others on behalf of Yugunga-Nya (WC99/46) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Anuman Holdings Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:John Sosso, Deputy President

Place:Brisbane

Date of dismissal:              9 January 2012

Date of reasons:                 27 January 2012

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliance – objection applications dismissed.

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

Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103

Representative of the

native title party:               Ms Alissa Lovering, Yamatji Land and Sea Council

Representative of the        

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

Representative of the        

grantee party:  Mr Brett Anderson, Anderson Tenement Management

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 25 August 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licences E51/1435 and E51/1436 to Anuman Holdings Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 27 December 2010, Evelyn Gilla & Others 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 in relation to E51/1435 (WO10/1678) and E51/1436 (WO10/1679).

Relevant facts

1. On 25 January 2011, the Tribunal made directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted.  These directions allowed a four month period from the closing date for objections to allow the parties to negotiate to see if the objection could be resolved.

2. On 4 January 2012, I was appointed as the Member for the purpose of conducting the inquiry into these expedited procedure objection applications.

3. At a status conference on 2 November 2011, the grantee party representative advised that he was still seeking comments and on that basis a request for variation to directions was made.  The native title party was not represented at this status conference.  On 8 November 2011, Deputy President Sumner approved the amendment to directions for native title party compliance on or before 28 November 2011.

4. At a status conference on 23 November 2011, the grantee party representative advised he had forwarded comments to the native title party. As the grantee party representative had not received any feedback and had been unable to make contact with the native title party representative, he requested a four week variation to directions. The Government party supported the request but asked that a springing order be imposed. The native title party was not represented at this status conference but was contacted by email later that day to advise the outcomes of the conference but no response was received. On 30 November 2011, Deputy President, Hon C J Sumner approved the request for a variation to directions and imposed a springing order which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Act in the event of non-compliance by the native title party by the due date, being 9 January 2012 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

5. As neither contentions nor evidence have been received from the native title party on or before 9 January 2012 and no explanation has been offered 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. The springing order has resulted in dismissal of WO10/1678 and WO10/1679.

Decision

1. Expedited procedure objection application WO10/1678 and WO10/1679 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President
25 January 2012