Mantjintjarra Ngalia 2/Western Australia/Ausnico Limited

[2013] NNTTA 172

NATIONAL NATIVE TITLE TRIBUNAL

Mantjintjarra Ngalia 2/Western Australia/Ausnico Limited [2013] NNTTA 172 (10 December 2013)

Application No:                WO2013/0663

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Mantjintjarra Ngalia 2 (WC2006/006) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Ausnico Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date of dismissal:            10 December 2013
Date of reasons:              10 December 2013

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, (‘Dixon’)

Representative of the

native title party:             Mr Andrew Burke, Goldfields Land and Sea Council

Representative of the     

Government party:          Mr Matthew Smith, Department of Mines and Petroleum

Representative of the

grantee party:                  Mr Peter Williams, Ausnico Limited

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 27 February 2013, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E38/2792-I to Ausnico Limited (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 24 June 2013, Mantjintjarra Ngalia 2 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to E38/2792-I.

Relevant facts

1. As at the first preliminary conference on 23 July 2013, the native title party had received a signed agreement from the grantee party. The native title party advised they required time to obtain signatures from the working group and the matter was adjourned to the first status conference.

2. The native title party provided an update to the Tribunal advising they were unable to secure the required signatures, with one signatory refusing to sign.

3. The Tribunal made directions on 8 November 2013, requiring the native title party to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The directions imposed a springing order which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Act, if there is non-compliance by the native title party. The native title party was directed to provide a statement of contentions, documentary evidence and witness statements verified, where possible, by affidavit, on or before 9 December 2013. In imposing the springing order, I considered and adopted the reasoning of Deputy President Sosso in Dixon (at [24]-[25]), and particularly taking into account that if objection applications are not prosecuted by the applicant, this renders the objection inquiry process otiose (at [18]).

4. Similar to Deputy President Sosso in Dixon (at [28]), I am not judgemental in relation to the way this matter has concluded. However, the native title party is legally represented, and the springing order was put into effect four weeks ago. The Tribunal has used the mechanism of springing orders for many years, since Dixon, where an objection application is not being prosecuted by the applicant.  In this matter, the native title party have not provided contentions or evidence, or any further explanation or requests, by the due date of 9 December 2013, and were informed of the possible consequences of a failure to comply.  The springing order applied has resulted in the dismissal of WO2013/0663.

Decision

1. As the native title party has not complied with Directions made by the Tribunal on 8 November 2013, the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth) in accordance with the terms of the Directions.

Helen Shurven
Member
10 December 2013