Robert Boona and Others on behalf of Yaburara and Mardudhunera/Western Australia/Fox Radio Hill Pty Ltd
[2010] NNTTA 47
•14 April 2010
NATIONAL NATIVE TITLE TRIBUNAL
Robert Boona and Others on behalf of Yaburara and Mardudhunera/Western Australia/Fox Radio Hill Pty Ltd, [2010] NNTTA 47 (14 April 2010)
Application No: WO09/332
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Robert Boona and Others on behalf of Yaburara and Mardudhunera – WC96/89 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Fox Radio Hill Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 8 April 2010
Date of reasons: 14 April 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 Act1993 (Cth) ss 29, 148(b)
Cases:Robert Boona & Ors on behalf of Yaburara & Mardudhunera/Western Australia/Helix Resources Ltd, NNTT WO09/331, [2010] NNTTA 18 (15 February 2010), Hon C J Sumner, Deputy President
Representatives of the
native title party: Mr Ron Villaflor, Ochre Innovation
Mr Ron Bower, Corser and Corser Lawyers
Representative of the
grantee party: Mr Laurie Chew, Fox Radio Hill Pty Ltd
Representative of the
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Mr Clyde Lannan, Department of Mines and Petroleum
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 25 February 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1269 (‘the proposed licence’) to Fox Radio Hill Pty 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).
On 15 April 2009, Wilfred Hicks and Others on behalf of Wong-Goo-Tt-Oo made an expedited procedure objection application to the Tribunal in relation to the proposed licence. The expedited procedure objection application from Wong-Goo-Tt-Oo was dismissed pursuant to s 148(a) of the Act on 9 November 2009, following dismissal of that group’s native title determination application in the Federal Court.
On 25 May 2009 Robert Boona and Others on behalf of Yaburara and Mardudhunera – native title claim application no. WC96/89 registered on 1 August 1996 - (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.
The proposed licence, totalling 31.98 square kilometres, is located 42 kilometres southwest of Dampier in the Shire of Roebourne and entirely overlaps the Yaburara and Mardudhunera native title application (WC96/89).
Relevant facts
The Tribunal made directions on 16 June 2009 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 19 October 2009. 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.
The Tribunal convened a number of preliminary and status conferences, at which attendance by both the native title party and the grantee party was sporadic. However, it was consistently reported that parties were willing to negotiate despite a number of reasons for delays in that process. The Government party indicated on several occasions that it would request the matter proceed to inquiry if no progress was made towards agreement. Following amendments to directions to facilitate progress, on 3 February 2010, the Government party formally requested inquiry on the basis of a poor record of attendance by both the native title and grantee parties and because no apparent progress had been made to secure withdrawal of the objection by agreement. Amended directions required native title party compliance by 8 February 2010 but no contentions or evidence were received by that date.
At a listing hearing on 18 February 2010 at which neither the native title party nor grantee party were represented, the Government party requested dismissal pursuant to s148(b) on the basis of non-compliance with directions by the native title party. Following the listing hearing, the grantee party requested further time to negotiate with the native title party but no comment on this request or the Government party’s request that the objection application be dismissed was received from the native title party. I rejected the Government party’s request for dismissal and directions were amended to allow a further six weeks for the native title party to submit contentions and evidence.
During this time a further two status conferences were convened during which the native title party representative advised he understood the objection application to have been withdrawn. Both the native title and grantee party representatives indicated a desire to continue negotiations, outside of the objection process if necessary. In the absence of confirmation of objection withdrawal I approved a further amendment to directions at the request of the native title party, requiring native title party compliance by 29 March 2010. The Government party advised that it would renew its request for dismissal if the native title party failed to comply.
The Government party has submitted contentions and evidence. To date no submissions have been received from the native title party.
A listing hearing was convened on 8 April 2010 at which the grantee party was unrepresented. The representative for the native title party confirmed it was aware that it had failed to comply with directions and did not seek a further extension to direction dates, noting it was likely negotiations would continue outside of the objection process. The Government party requested dismissal pursuant to s148(b), observing that the following condition would be placed on the grant of the proposed licence:
"In respect of the area covered by the licence the Licensee, if so requested in writing by the Yaburara & Mardudhunera People, the applicants in Federal Court application no. WAD 127 of 1997 (WC96/89), such request being sent by pre-paid post to reach the Licensee's address at I Tully Road, East Perth WA 6004, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Yaburara & Mardudhunera People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Pilbara native title Service."
The representative for the native title party indicated that in a practical sense, such a condition would have the effect of addressing the native title party’s heritage concerns, and did not oppose the Government party’s request for dismissal.
The tribunal has previously considered an application to dismiss a Yaburara and Mardudhunera objection pursuant to s148(b) – see Robert Boona & Ors on behalf of Yaburara & Mardudhunera/Western Australia/Helix Resources Ltd, NNTT WO09/31, [2010] NNTTA 18 (15 February 2010), Hon C J Sumner, Deputy President. My findings (para [13]) in that matter are equally applicable in this case, and I adopt them for the purposes of this inquiry. No satisfactory explanation has been offered for the native title party’s continued and persistent failure to comply.
Taking all these factors into account, 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.
I further observe that the Yaburara and Mardudhunera People will be provided with the option to request a heritage agreement of the type endorsed by the Government party should it wish to do so. The condition should ensure that the native title party’s heritage concerns are ameliorated.
Decision
The expedited procedure objection application WO09/332 is dismissed pursuant to s 148(b) of the Native Title Act1993.
Hon C J Sumner
Deputy President
14 April 2010
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