Judy Hughes and Others on behalf of the Thalanyji People /Western Australia/ BRL Exploration Pty Ltd

[2008] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Judy Hughes and Others on behalf of the Thalanyji People /Western Australia/ BRL Exploration Pty Ltd, [2008] NNTTA 30 (13 March 2008)

Application No:                WO07/1046

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

-and-

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

Judy Hughes & Others on behalf of the Thalanyji People - WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

-and-

BRL Exploration Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  13 March 2008

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:Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner

Representative of the     

native title party:             Ms Richardene Dangor, Desert Management Pty Ltd

Representative of the

grantee party:                  Mr Clive Miller, Tenure Matters

Representative of the     

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 26 September 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1812 to BRL Exploration 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 October 2007, Judy Hughes & Others on behalf of the Thalanyji People, Native Title Claim No WC99/45 – registered from 7 February 2000 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. On 30 October 2007 the Tribunal made directions requiring 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 26 May 2008. 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 a preliminary conference convened on 13 November 2007 the grantee party requested that this matter proceed to inquiry as agreement with the native title party was not possible.  The Government and grantee parties requested that the dates for compliance be brought forward to enable the inquiry to be conducted as expeditiously as possible and the native title party did not oppose the request.  Accordingly, and in common with current Tribunal practice to bring compliance dates forward to eliminate the standard 16 week negotiating period in matters such as this where it is clear from the outset that agreement cannot be reached, I amended directions for the native title party to comply by 25 February 2008.  Parties were advised in writing of these dates and of the date for the Listing Hearing on 29 November 2007.

3. The Government party and the grantee party have complied with directions.  To date no contentions or evidence, nor any application in relation to the date for compliance, have been received from the native title party.

4. At the Listing Hearing of 6 March 2008 the Government and grantee parties each sought dismissal of the objection pursuant to s 148(b) of the Act on the basis of non-compliance with a direction of the Tribunal by the native title party. The native title party did not oppose the applications to dismiss.

5. The Thalanyji native title party has a history of non-compliance with the Tribunal’s directions (see for example Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567 [2006] NNTTA 18 (23 February 2006) Hon C J Sumner) (‘Ochre Resources’) and of late, a number of parties have requested that directions in relation to Thalanyji objections include a springing order, which has the effect of automatically dismissing the objection application in the event of non-compliance by the applicant (native title party).  In this matter a springing order was not applied and I am required to determine whether there are sufficient grounds for the objection to be dismissed.  For the same reasons as those in Ochre Resources (at [14]) I find that the native title party has not complied with a direction of the Tribunal and that the objection should therefore be dismissed.  I also observe that in the circumstances of this matter, the representative for the native title party has not opposed the dismissal application.

Decision

1. The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the objection application WO07/1046 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
13 March 2008