Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/Jinka Minerals Ltd

[2012] NNTTA 5

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/Jinka Minerals Ltd, [2012] NNTTA 5 (27 January 2012)

Application No:                  WO11/76, WO11/77, WO11/78

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-

Jinka Minerals Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:John Sosso, Deputy President

Place:Brisbane

Date of dismissal:              16 January 2012

Date of reasons:                27 January 2012

Catchwords:  Native title – future act – proposed grant of prospecting 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:  Ms Diya Sequeira, Tenement Administration Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

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 P51/2661, P51/2662 and P51/2663 to Jinka Minerals Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 24 January 2011, 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 P51/2661 (WO11/76), P51/2662 (WO11/77) and P51/2663 (WO11/78).

Relevant facts

1. On 21 February 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 objections could be resolved by consent.

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. Between May 2011 and July 2011 a number of conferences were held where it was indicated to the Tribunal that parties were close to agreement but that there was some disagreement over the buffer zone which was to be discussed at a Working Group Meeting of the native title party.  At a status conference on 13 July 2011, the grantee party representative advised that her client could not accept the size of the buffer zone.   The native title representative advised that she could not proceed without instructions from the claim group.

4. At a status conference on 3 August 2011, the native title party requested that the matter proceed to inquiry.  The native title party representative requested a 6 week extension to comply which was supported by the other parties and subsequently approved.  The native title party was to comply on 10 October 2011.

5. At a listing hearing on 20 October 2011, the native title party representative advised that, as she was having trouble processing the gender-restricted evidence and finalising other evidence, she sought a variation to directions of five weeks to do so.  The grantee party supported the request and the Government party did not oppose it.  On 27 October 2011 Deputy President, Hon C J Sumner approved an amendment which directed the native title party to comply on or before 21 November 2011. 

6. At a further listing hearing on 1 December 2011, the native title party representative advised that the only male anthropologist, who had been on country, was now back in the office which meant they would now be able to finalise the gender-restricted evidence. On this basis the native title party requested an eight week variation to directions. The Government party requested that the objection applications be dismissed under s 148(b) for non-compliance and the grantee party supported that request. On 5 December 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 16 January 2012 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

7. Neither contentions nor evidence have been received from the native title party on or before 16 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 WO11/76, WO11/77 and WO11/78.

Decision

1. Expedited procedure objection applications WO11/76, WO11/77 and WO11/78 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President
27 January 2012