Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Swancove Enterprises Pty Ltd

[2011] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Swancove Enterprises Pty Ltd, [2011] NNTTA 14 (15 February 2011)

Application No:               WO10/1089

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

-and-

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

Ike Simpson & Ors on behalf of Wajarri Yamatji (WC04/10) (native title party)

-and-

The State of Western Australia (government party)

-and-

Swancove Enterprises Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            10 January 2011
Date of reasons:              15 February 2011

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in the event of non-compliance – objection application 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 Marlpa Aboriginal Corporation

Representative of the:    

Government party:         Ms Leanne Davis, Department of Mines and Petroleum

Representative of the
grantee party:                 Ms Sherry Hingston, Iron Mountain Mining Limited

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 7 April 2010, the government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2511 (‘the proposed licence’) to Swancove Enterprises Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 5 August 2010, Ike Simpson & Ors on behalf of Wajarri Yamatji – Native Title Claim Application No. WC04/10 registered on 5 December 2005 (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.

Relevant facts

1. On 30 August 2010, 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. The native title party was to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 6 December 2010. The directions contained 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. During September 2010 and October 2010, a number of conferences were held where it was indicated to the Tribunal that the grantee party representative would rely on the Regional Standard Heritage Agreement (‘RSHA’). The native title party representative advised instructions would have to be sought from the claimants regarding the suitability of the RSHA for this tenement. 

3. On 17 November 2010, the native title party representative advised the RSHA was acceptable to the claimants. An executed copy of the RSHA was received from the grantee party and forwarded to the native title party for execution. The native title party representative requested an extension of compliance to 10 January 2011 to finalise the execution of the agreement and subsequently withdraw the objection application. This request was approved on 23 November 2010. The Tribunal’s directions imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Act if there is non-compliance by close of business on the due date, being 10 January 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

4. The Government party has complied with directions.  Neither contentions nor evidence has been received from the native title party and no explanation has been offered for the failure to comply with the Tribunal’s directions by close of business 10 January 2011.  The springing order, applied to the Tribunal directions on 23 November 2010, has resulted in dismissal of the application.

Decision

1. Expedited procedure objection application WO10/1089 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
15 February 2010