Ronald Crowe & Ors on behalf of Gnulli; Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Fraka Investments Pty Ltd

[2012] NNTTA 75

NATIONAL NATIVE TITLE TRIBUNAL

Ronald Crowe & Ors on behalf of Gnulli; Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Fraka Investments Pty Ltd, [2012] NNTTA 75 (29 June 2012)

Applications No:                WO11/1030, WO11/1031

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

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

Ronald Crowe & Ors on behalf of Gnulli   (first native title party)

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Ike Simpson & Ors on behalf of Wajarri Yamatji  (second native title party)

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The State of Western Australia   (government party)

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Fraka Investments Pty Ltd   (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:  John Sosso
Place:  Brisbane
Date of dismissal:              21 June 2012
Date of reasons:                 29 June 2012

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

Legislation:Native Title Act1993 (Cth) s 148(b)

Cases:Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266, Deputy President John Sosso

Representatives:

Native title parties:            Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation

Government party:           Mr Clyde Lannan, Department of Mines and Petroleum

Grantee party:                   Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

1. On 4 May 2011, the State of Western Australia (“the government party”) gave notice under s. 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licences E09/1847 and E09/1850 (“the proposed tenements”) to Fraka Investments Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On 5 September 2011, Ronald Crowe & Ors on behalf of Gnulli (“the first native title party”) lodged an expedited procedure objection application with the Tribunal in relation to E09/1847 (WO11/1030).

3. On 5 September 2011, Ike Simpson & Ors on behalf of Wajarri Yamatji (“the second native title party”) lodged an expedited procedure objection application with the Tribunal in relation to E09/1850 (WO11/1031).

Relevant facts

1. During the period from November 2011 to May 2012 the native title parties’ representative had been seeking instructions from native title claim lawyers in order to provide a response to the grantee party’s preferred amendments to the alternative agreement.

2. At the adjourned status conference for expedited procedure objection applications WO11/1030 and WO11/1031 on 2 May 2012, the grantee party’s representative advised it had not received a response from the native title parties, were unwilling to delay the matter any further and requested the matters proceed to inquiry. Directions were made requiring the native title parties to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 28 May 2012.

3. By the due date for compliance by the native title parties, no contentions had been received nor had there been any contact from the native title parties requesting additional time for compliance.

4. On 5 June 2012 the government party requested via email that the expedited procedure objection applications be dismissed under s. 148(b) of the Act for failure of the native title parties to comply with the Tribunal’s directions. The grantee party supported the government party’s application. The native title parties failed to provide a response.

5. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal 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 these matters, the native title parties were represented by the Yamatji Marpla Aboriginal Corporation (YMAC), the designated Native Title Representative Body under the Act for the area of the claims which has special responsibility for representing claimants in relation to native title determination proceedings and associated future acts. The YMAC and its officers would be fully aware of the need to comply with Tribunal directions to enable contentions and evidence to support the expedited procedure objection applications to be placed before the Tribunal in a timely manner. No satisfactory explanation has been offered for the failure to comply.

6. As the native title parties had not complied with the Directions of the Tribunal nor made any contact with the Tribunal to apply for further time to comply, I dismissed the expedited procedure objection applications on 21 June 2012 in accordance with the submissions of the government party.

7. Although the expedited procedure objections application have been dismissed by force of the springing orders, nonetheless it is the practice of the Tribunal to subsequently provide formal written reasons outlining the process.

Decision

1. Expedited procedure objection applications WO11/1030 and WO11/1031 are dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President