Ike Simpson & Others on behalf of Wajarri Yamatji/ Ronald Crowe & Others on behalf of Gnulli/Western Australia/FEC Ii Pty Ltd

[2011] NNTTA 68

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Others on behalf of Wajarri Yamatji/ Ronald Crowe & Others on behalf of Gnulli/Western Australia/FEC II Pty Ltd, [2011] NNTTA 68 (20 April 2011)

Application Nos:              WO09/1037, WO09/1052

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Ike Simpson & Others on behalf of Wajarri Yamatji (WC04/10) (WO09/1037)

-and-

Ronald Crowe & Others on behalf of Gnulli (WC97/28) (WO09/1052) (native title parties

-and-

The State of Western Australia (Government party)

-and-

FEC II Pty Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            11 April 2011
Date of reasons:              20 April 2011

Catchwords: Native title – future acts – proposed grant of exploration licence – 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 parties:          Ms Alissa Lovering, Yamatji Marpla Aboriginal Corporation

Representative of the     

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

Representative of the

grantee party:                  Mr Greg Abbott, M & M Walter Consulting Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 26 August 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E09/1618 (‘the proposed licence’) to FEC II Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. The proposed licence comprising 193.03 square kilometres is located 132 kilometres east of Gascoyne Junction in the Shire of Upper Gascoyne, and is overlapped 98.96 per cent by the registered native title claim of Wajarri Yamatji (WC04/10 – registered from 5 December 2005) and 1.04 per cent by the registered native title claim of Gnulli (WC97/28 – registered from 14 April 1997).

3. On 18 December 2009, Ike Simpson & Others on behalf of Wajarri Yamatji (‘Wajarri Yamatji native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO09/1037).

4. On 21 December 2009, Ronald Crowe & Others on behalf of Gnulli (‘Gnulli native title party’) also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO09/1052). 

Relevant facts

1. On 11 January 2010, the Tribunal made directions in relation to WO09/1037 and WO09/1052 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 parties were to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 27 April 2010. 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 numerous conferences between April 2010 and December 2010 parties advised they were negotiating on the inclusion of a clause pertaining to uranium exploration as part of the Alternative Heritage Agreement (‘AHA’).

3. At an adjourned status conference before Deputy President Sumner on 11 February 2011, the native title parties’ representative advised that there was an agreement in principle for WO09/1037. In relation to WO09/1052, the grantee party advised they would not accept an exclusion clause the native title party sought to include within the AHA. The native title party representative advised that she would seek instructions from Gnulli, however if the issue was not resolved the native title party would prepare contentions and evidence. The native title parties’ representative requested a six week extension to directions in both matters to allow time for the objections to be withdrawn or to comply for an inquiry. On 11 February 2011, I approved the native title parties’ request to amend directions and imposed a springing order in both matters automatically dismissing the objections pursuant to s 148(b) of the Act in the event of non-compliance by the native title parties by the due date, 11 April 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

4. Neither contentions nor evidence has been received from the native title party in relation to either WO09/1037 or WO09/1052 by close of business 11 April 2011 and no explanation has been provided for the failure to comply with the Tribunal’s directions by that date despite the native title parties having been informed of the possible consequences of a failure to comply. The springing order applied has resulted in the dismissal of WO09/1037 and WO09/1052.

Decision

1. Expedited procedure objection applications WO09/1037 and WO09/1052 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
20 April 2011