Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/Hemisphere Resources Ltd

[2010] NNTTA 108

NATIONAL NATIVE TITLE TRIBUNAL

Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/Hemisphere Resources Ltd, [2010] NNTTA 108 (22 July 2010)

Application No:        WO10/432

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-

Hemisphere Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               16 July 2010
Date of reasons:                 22 July 2010

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure within a reasonable time to proceed with objection application – failure to comply with directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the        

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

Representatives of the      Mr Clyde Lannan, Department of Mines and Petroleum

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

Representative of the        

grantee party:  Mr Steve Milner, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 18 November 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2110 (‘the proposed licence’) to Hemisphere Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. On 18 March 2010 Nicholas Cooke & Anor on behalf of Innawonga and Bunjima – native title claim application no. WC99/61 registered on 4 June 1996 - (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. The proposed licence, totalling 41.05 square kilometres, is located 80 kilometres northwest of Newman in the Shire of East Pilbara and overlaps both the Innawonga and Bunjima (WC96/61) and Martu Idja Banyjima  (WC98/62) native title applications at 100 per cent.

Relevant facts

1. The Tribunal made directions on 12 April 2010 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 12 July 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 a preliminary conference on 27 April 2010 the grantee party advised an agreement had been reached with Martu Idja Banyjima (100 per cent overlap).  The grantee party also advised that there was no intention to negotiate an agreement with Innawonga and Bunjima (100 per cent overlap) as the State’s requirements are satisfied by signing with one 100 per cent overlapping claim.  The grantee party requested the matter proceed to inquiry with dates to stand, the Government supported this request. The native title party was not available, both the Tribunal and grantee party were to contact the native title party representative to advise the outcome of the conference.

3. On the 12 July, the native title party requested a four week extension to 9 August 2010 in order to obtain a response from the grantee in regards to a letter outlining the current litigation between Innawonga and Bunjima and Martu Idja Banyjima. The grantee provided a response to the native title party outlining its position in regard to the matter including the issue of litigation and advised all parties that it did not support the request to extend compliance dates. The State also did not support the request for extension and on 13 July 2010 requested the native title party be dismissed pursuant to s 148(b) of the Act for non-compliance with a direction of the Tribunal. The grantee party supported the State request for dismissal. In response to the request for dismissal, the native title party submitted a copy of the letter addressed to the grantee party to the Tribunal. The letter advised of the litigation between the overlapping claim groups and suggested that the grantee party should negotiate with Innawonga and Bunjima, there was no indication the native title party would be collecting contention and evidence for an inquiry.

4. The Government party complied by the due date stated in the original directions (being 5 July 2010).  To date, no contentions or evidence from the native title party has been forthcoming.

5. It has been clear to the native title party since 27 April 2010 that there was no prospect of a mutually agreed outcome and therefore that contentions and evidence for an inquiry were necessary.

6. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application. In this matter, the native title party was represented by the Pilbara Native Title Service (‘PNTS’) the designated Native Title Representative Body under the Act for the area of the claim which has special responsibility for representing claimants in relation to native title determination proceedings and associated future acts. The PNTS and its legal representatives would be fully aware of the need to comply with Tribunal directions to enable contentions and evidence to support the objection application to be placed before the Tribunal in a timely manner. No satisfactory explanation has been offered for the failure to comply.

7. I find that the native title party has failed within a reasonable time to proceed with its objection and to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.

Decision

1. The objection application WO10/432 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
22 July 2010