Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/Brockman Iron Pty Ltd

[2010] NNTTA 109

NATIONAL NATIVE TITLE TRIBUNAL

Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/Brockman Iron Pty Ltd, [2010] NNTTA 109 (22 July 2010)

Application No:                 WO09/1080

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

-and-

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

Nicholas Cooke & Anor on behalf of Innawonga and Bunjima – WC96/61 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Brockman Iron Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               19 July 2010

Date of reasons:                 22 July 2010

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 event of non-compliance – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Representative of the        

native title party:              Ms Lea Notte, Pilbara Native Title Service

Representatives of the      Ms Claire Malavaux, Department of Mines and Petroleum

Government party:           Mr Greg Abbott, Department of Mines and Petroleum

Representative of the        

grantee party:  Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 9 September 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1942 to Brockman Iron Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 21 December 2009, Nicholas Cooke & Anor on behalf of Innawonga and Bunjima - WC96/61 registered from 4 June 1996 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.

Relevant facts

1. The Tribunal made directions on 19 January 2010 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 10 May 2010. The directions contain a statement that the 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 on 9 February 2010, the Tribunal was informed that the grantee party had offered a Regional Standard Heritage Agreement (‘RSHA’).  The representative for the native title party advised that instructions were required regarding heritage sites in the area.  As a consequence, directions were amended on two occasions, ultimately requiring native title party compliance by 12 July 2010. 

3. On 12 July 2010, the native title party requested a further one week amendment to directions to seek instructions at the Innawonga and Bunjima community meeting. This request was supported by the grantee party and Government party on the basis that the objection application be dismissed pursuant to s 148(b) of the Act if the native title party was non-compliant as of close of business on the due date.

1. Accordingly, I amended directions on 13 July 2010, requiring native title party compliance by close of business on 19 July 2010. I also considered it appropriate to make a springing order, automatically dismissing the objection application pursuant to s 148(b) of the Act in the event of non-compliance by the due date.

2. The Government party has complied with directions, but neither contentions, evidence, nor submissions have been received from the native title party or the grantee party.

3. The native title party has failed to comply by the due date and made no submissions prior to the due date as to its inability to comply, despite being aware of the consequences of the springing order.  Further, the native title party was provided with multiple opportunities to first reach an agreement, and then submit contentions and evidence in support of its objection application.  It has not done so.

4. I further observe that the Government party intends to make a condition on grant, that the Innawonga and Bunjima will be provided with the option of requesting that the RSHA be executed by the grantee party should they wish to do so, and that the grantee party will be obligated to sign that agreement or breach the conditions of grant.  The condition should ensure that the native title party’s heritage concerns are ameliorated.

Decision

1. Expedited procedure objection application WO09/1080 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 July 2010