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

[2011] NNTTA 105

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Gondwana Resources Pty Ltd, [2011] NNTTA 105 (17 June 2011)

Application Nos:             WO09/1106

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

-and-

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

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

-and-

The State of Western Australia (Government party)

-and-

Gondwana Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            11 April 2011
Date of reasons:              17 June 2011

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in the event of non-compliance – objection application 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 APPLICATION

Background

1. On 2 December 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1969 to Gondwana Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 23 December 2009, The Buurabalayji Thalanyji Aboriginal Corporation (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. At a status conference on 24 February 2011, the grantee party advised that they were concerned with some of the clauses within the Alternative Heritage Agreement.  Parties asked to continue negotiations and the native title party requested a variation of two months to allow this to happen.  The Government party advised that it would not support a two month variation to directions but would support a request of one month.  The Government party requested that if a variation of two months was approved that a springing order be imposed.

2. The Tribunal made directions on 10 March 2011, requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The directions imposed a springing order which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Native Title Act if there is non-compliance by the native title party.  The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit on or before 11 April 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.

3. Neither contentions nor evidence have been received from the native title party by the due date 11 April 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 WO09/1106.

Decision

1. Expedited procedure objection application WO09/1106 is dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
17 June 2011