Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Carlinga Mining Pty Ltd

[2008] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Carlinga Mining Pty Ltd, [2008] NNTTA 69 (3 June 2008)

Application No:        WO07/928

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

-and-

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

Robert Flanagan on behalf of the Mullewa Wadjari Community (WC96/93) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Carlinga Mining Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:                29 May 2008
Date of reasons:                   3 June 2008

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

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

Cases:Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/ Geotech International Pty Ltd, NNTT WO07/828 [2008] NNTTA 41 (4 April 2008), Hon C J Sumner

Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829 [2008] NNTTA 46 (11 April 2008), John Sosso

Hearing date:  29 May 2008

Representative of the        

native title party:               Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the        

Government party:           Mr Greg Abbott, Department of Industry and Resources

Representative of the        

grantee party:  Mr Dennis Hawtin, Giralia Resources NL

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 12 September 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1207 (‘the proposed licence’) to Carlinga Mining Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 13 September 2007 Robert Flanagan on behalf of the Mullewa Wadjari Community – WC96/93, registered from 19 August 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 24 November 2007 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 May 2008. 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 native title party has failed to comply by the due date.

Inquiry and findings

1. On 29 May 2008 I convened a listing hearing at which time the Government party supported by the grantee party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The representative for the native title party requested an extension of a further four weeks in which to comply on the basis that as an independently represented group it was not always possible to schedule meetings with the native title party to obtain instructions in a timely manner. I refused this request on the basis that considerable time had already elapsed since the objection was lodged on 13 September 2007. On 15 January 2008 the native title party was made aware that its Alternative Heritage Agreement was not acceptable to the grantee party who requested that the matter proceed to inquiry. On 12 February 2008, the original directions were confirmed on the basis that the inquiry would proceed. The native title party has had adequate time in which to comply with the Tribunal’s directions and no justifiable reason has been given for the failure to comply or to justify an extension of time to comply.

2. I find that the native title party has failed to comply with a direction of the Tribunal and has provided no satisfactory explanation for its failure.  In making the decision to dismiss this application for non-compliance I adopt the Tribunal’s findings in Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Geotech International Pty Ltd, NNTT WO07/828, [2008] NNTTA 41 (4 April 2008) at [9]-[10] and Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829, [2008] NNTTA 46 (11 April 2008), John Sosso at [10]-[11].

Decision

1. The applicant (native title party) has failed to comply with a direction by the Tribunal and accordingly the objection application WO07/928 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
3 June 2008