Robert Boona & Ors on behalf of Yaburara & Mardudhunera/Western Australia/Helix Resources Ltd

[2010] NNTTA 18

NATIONAL NATIVE TITLE TRIBUNAL

Robert Boona & Ors on behalf of Yaburara & Mardudhunera/Western Australia/Helix Resources Ltd, [2010] NNTTA 18 (15 February 2010)

Application No:                 WO09/331

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 & Ors on behalf of Yaburara & Mardudhunera – WC96/89 (native title party)

-and-

The State of Western Australia (Government party)

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Helix Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            5 February 2010
Date of reasons:              15 February 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:Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67

Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso

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

Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265

Representatives of the      Mr Ronald Villaflor, Ochre Innovation

native title party:              Mr Ronald Bower, Corser & Corser, Lawyers

Representative of the        Mr Greg Abbott, Department of Mines and Petroleum

Government party:           Ms Claire Malavaux, Department of Mines and Petroleum

Representative of the

grantee party:  Mr Brett Anderson, Anderson Tenement Management

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. 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 E47/1089 (‘the proposed licence’) to Helix Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 25 May 2009, Robert Boona & Others on behalf of the Yaburara & Mardudhunera People – native title claimant application no. WC96/89 registered from 1 August 1996 (‘the native title party’), lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. The proposed licence comprises an area of 67.05 square kilometres, is located 41 kilometres south of Karratha in the Shire of Roebourne and overlaps the registered native title claim of the Yaburara & Mardudhunera People (WC96/89) by 57.84 per cent.

Relevant facts

1. 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.

2. The Tribunal convened a number of preliminary and status conferences, during which it was reported that parties wished to negotiate an agreement and were optimistic that a mutually acceptable outcome could be reached to dispose of the objection.   Directions were amended on two occasions to permit instructions to be sought, the first amendment being sought by the grantee party and the second by the Government party.  After delays from both the grantee and native title parties in obtaining feedback from their clients, the Government party requested the matter proceed to inquiry at a status conference held on 18 November 2009.

3. At a further status conference held on 9 December 2009 the representative for the native title party advised their client was not agreeable to a proposal made by the grantee party regarding heritage protocols.  The grantee party representative indicated instructions would be sought from their client and the Government party reiterated its previous request for inquiry with amended directions to remain as set.  The grantee party supported this request. 

4. On 14 December 2009, being the native title party’s due date for compliance with amended directions, it requested a further extension to its date for compliance via email.   Although this request was opposed by the Government party I approved a further amendment to directions to require native title party compliance by 14 January 2010.  This approval was given on the basis that genuine efforts would be made to meet the compliance deadline.  Parties were advised in writing of amended dates on 16 December 2009 and were informed further extension requests would be unlikely to be favourably viewed.

5. The Government party has submitted contentions and evidence in compliance with amended directions.  To date, neither contentions nor evidence have been forthcoming from from the native title party.

6. On 15 January 2010, the Tribunal received advice via email from the legal representative for the native title party, Mr Ronald Bower, indicating that the native title party did not wish to maintain its objection.  Mr Bower further advised that formal withdrawal of the objection application would follow later on that date.  No such advice was received.

7. On 28 January 2010 a listing hearing was convened, at which the native title party was unrepresented. The Government and grantee parties were advised of the native title party’s intent to withdraw the objection and agreed to adjourn the listing hearing to 4 February 2010 to allow time for this to occur. The grantee party confirmed that no agreement had been reached between it and the native title party. The Government party advised that application to dismiss the objection pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party would be made at the adjourned listing hearing if the objection had not been withdrawn.

1. Tribunal officers have made multiple attempts by email and telephone to contact the native title party representatives to advise them of the outcome of the listing hearing and clarify the status of the objection application.  On 28 January 2010 Senior Caseflow Manager, Sara Burke, further advised Mr Bower in person that the objection was vulnerable to dismissal unless submissions were provided or the objection withdrawn prior to 4 February 2010.  To date no objection withdrawal has been received from the native title party.

2. At the adjourned listing hearing held on 4 February 2010 neither representative for the native title party was present. The Government party formally requested the objection application be dismissed pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The grantee party supported this request while observing that it would still be willing to negotiate an agreement regarding the proposed licence. The native title party was advised of the dismissal application via email and was provided until close of business 4 February 2010 to respond. No response was received despite several attempts to contact a native title party representative by telephone and email. On 5 February 2010 I dismissed the objection application.

3. 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 (see also Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso citing the Federal Court in Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67 (at [85]) (per Nicholson J) and Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278 (per Lee J)). In this matter, the native title party was represented by Mr Ronald Villaflor, Ochre Innovation (administrative representative) and Mr Ronald Bower, Corser and Corser, Lawyers (legal representative). The native title party 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. The native title party applied for one extension of time which was granted by the Tribunal. No satisfactory explanation has been offered for the continued failure to comply and the native title party’s representatives failed to attend the listing hearings scheduled on 28 January 2010 and 4 February 2010.

4. 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.

Decision

1. The expedited procedure objection application WO09/331 is dismissed pursuant to s 148(b) of the Native Title Act1993.

Hon C J Sumner
Deputy President
15 February 2010