The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Gondwana Resources Ltd

[2011] NNTTA 179

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Gondwana Resources Ltd, [2011] NNTTA 179 (30 September 2011)

Application Nos:             WO10/1116, WO10/1117

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

The Buurabalayji Thalanyji Aboriginal Corporation (WD08/4) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Gondwana Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            26 September 2011
Date of reasons:              30 September 2011

Catchwords:  Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliance – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103

Representative of the

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

Representative of the      

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

Representative of the

grantee party:                 Mr Brett Anderson, Anderson Tenement Management

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 25 June 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licences E08/2001 and E08/2044 to Gondwana Resources Ltd (the grantee party) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On 9 August 2010, The Buurabalayji Thalanyji Aboriginal Corporation (the native title party) made expedited procedure objection applications to the Tribunal.

Relevant facts

1. On 30 August 2010, the Tribunal made directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted.  These directions allowed a four month period from the closing date for objections to allow the parties to negotiate to see if the objections could be resolved by consent.

2. At an adjourned listing hearing on 4 August 2011, the grantee party representative advised that his client was concerned with some of the clauses within the Alternative Heritage Agreement.  The grantee party representative also advised that if there was no ability to further negotiate, his client wished to proceed to inquiry.  On the basis that the matters were proceeding to inquiry, the native title party requested a variation to directions of eight weeks.  The Government party supported the request but requested that a springing order be imposed.  The Government party had fully complied with the Tribunal directions by 11 March 2011. 

3. On 5 August 2011, I approved the native title party’s request to amend directions and imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Act if there is non-compliance by the native title party by the due date, 26 September 2011. In imposing the springing order I considered and adopted Deputy President Sosso’s reasons in Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103.

4. On 10 August 2011, the native title party representative advised the Tribunal by email that negotiations had reached an impasse.

5. Neither contentions nor evidence have been received from the native title party by the due date 26 September 2011 and no explanation has been provided for the failure to comply with the Tribunal’s directions despite the native title party having been informed of the possible consequences of a failure to comply.  The springing order applied has resulted in the dismissal of WO10/1116 and WO10/1117.

Decision

1. Expedited procedure objection applications WO10/1116 and WO10/1117 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
30 September 2011