Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/PM Prospecting Pty Ltd

[2007] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/PM Prospecting Pty Ltd, [2007] NNTTA 60 (16 July 2007)

Application No:                 WO06/721

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-

PM Prospecting Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of Dismissal:              18 June 2007
Date of Reasons:               16 July 2007

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with Directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(b)

Cases:Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner

Champion v Western Australia [2005]NNTTA 1; (2005) 190 FLR 362

Representative of the

native title party:               Ms Anne-Marie Hagan, Yamatji Land and Sea Council

Representative of the

grantee party:  Mr Dennis Hawtin

Representative of the   

Government party:           Mr Greg Abbott, Department of Industry & Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 16 August 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E58/304 to PM Prospecting Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 11 December 2006, Evelyn Gilla & Others on behalf of Yugunga-Nya (‘the native title party’) made an expedited procedure objection application to the Tribunal.  The objector’s application for a determination of native title (WC99/46) was entered on the Register of Native Title Claims from 12 June 2000.

Relevant Facts

1. The Tribunal, in accordance with its normal Procedures under the Right to Negotiate Scheme, made directions on 16 January 2007 for 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 16 April 2007. 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 the first preliminary conference convened on 30 January 2007, the grantee party representative, Mr Dennis Hawtin, advised the grantee had offered the Goldfields Regional Standard Heritage Agreement (‘RSHA’) to the Wutha People (‘Wutha’), the external boundaries of whose native title determination application (WC99/10, registered from 15 June 1999) also overlap the tenement.  Mr Hawtin also advised that the grantee party would not enter into a separate agreement with the native title party, despite the fact that this group is situated in an adjacent region (Geraldton) and has endorsed that region’s standard heritage agreement.  In adopting this approach, the grantee is complying with the Government party’s policy that only one agreement is required in circumstances where more than one native title claim overlaps both each other and the tenement.  

1. The representative for the native title party, Ms Anne Marie Hagan, advised that it had not endorsed the Goldfields RHSA and did not agree that the offer of this agreement to another native title claimant group would be sufficient to ensure heritage protection for the native title party.  As agreement could not be reached under these circumstances, Mr Hawtin, with the support of the Government party, requested the matter proceed to a determination by the Tribunal.

2. A listing hearing was convened by the Tribunal on 3 May 2007, during which the native title party was again represented by Ms Anne Marie Hagan.  During this hearing Ms Hagan requested a short extension to compliance dates to allow the matter to be discussed at an upcoming working group meeting.  As the native title party had failed to comply by its then due date, this amendment also allowed further time for its contentions and evidence to be lodged.  The Government and grantee parties were prepared to consent to this request but made it clear that neither would be prepared to support any further extensions to compliance dates.

3. On the basis of the consent given by the other parties, I amended directions on 16 May 2007, requiring native title party compliance by 29 May 2007.

4. The Government party complied with directions and I infer from the lack of submissions from the grantee party that it intends to rely on the Government party’s contentions.  No submissions from the native title party were forthcoming by the due date.

5. On 18 June 2007 I convened a listing hearing at which the Government party, supported by the grantee party, made application to dismiss the objection application pursuant s 148(b) of the Act on the basis of non-compliance by the native title party. The native title party was again represented by Ms Hagan who advised in response that the native title party did not have the resources to prepare contentions or evidence in this matter and, accordingly, accepted that the application was likely to be dismissed.

6. Whilst maintaining that the existence of an agreement with Wutha would not necessarily afford protection to the native title party, Ms Hagan requested clarification from the grantee party representative as to whether Wutha had accepted the offered agreement.   Mr Hawtin, for the grantee party, was unable to confirm whether this had occurred and objected in principle to providing this information to the native title party. 

7. I note for the record that, even if Wutha has not yet executed the offered agreement, the Government party intends to attach the now standard condition (‘condition 520’) to the grant of the tenement that affords Wutha the option to, within 90 days of the grant of the tenement, request that the grantee execute the relevant RSHA.  I also note that the Government party has undertaken to ascertain whether Wutha has accepted the agreement offered and advise Ms Hagan of the outcome.  Finally, I note that the Tribunal has previously made comment on the Government party’s policy requiring a RSHA to be signed with respect to only one native title party even where there is more than one registered claim over a proposed tenement area (see in Champion v Western Australia [2005]NNTTA 1; (2005) 190 FLR 362 at [31]).

8. It has been clear to the native title party since 30 January 2007 that there was no prospect of a mutually agreed outcome.  I find that the native title party has failed within a reasonable time to proceed with their objection and to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been afforded additional time in which to comply and informed of the possible consequences of a failure to comply.  The reasons provided and cases cited in Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner (at [12]) are largely applicable in this matter.

Decision

1. The applicant (native title party) has failed to comply with a Direction by the Tribunal and accordingly the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
16 July 2007