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

[2011] NNTTA 175

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Madam Resources Pty Ltd, [2011] NNTTA 175 (27 September 2011)

Application No:                  WO10/1213

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 – WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Madam Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              19 August 2011

Date of reasons:                27 September 2011

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 Act1993 (Cth) ss 29, 148(b)

Cases:Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner

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:                   Ms Nerida O’Brien, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 27 August 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licence E08/2173 (the proposed licence) to Madam Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 6 September 2010, The Buurabalayji Thalanyji Aboriginal Corporation (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 11 October 2010 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 native title party was to provide its contentions and documentary evident by 26 April 2011. The directions contain a statement that the 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. Following the preliminary conference on 26 October 2010 negotiations occurred between the native title party and grantee party about the native title party’s preferred agreement to see if the objection could be resolved by agreement leading to its withdrawal.

3. On 24 May 2011, the Government party complied with directions.  At a status conference on 15 June 2011, the grantee party representative advised that there still had been no comment from their client.  The native title party requested a variation to directions pending comment from the grantee party.  The request was not supported by the Government Party.  The request was approved and the native title party was to comply on or before 1 August 2011.

4. At a status conference on 27 July 2011, the grantee party representative advised that an amended agreement had been sent to the native party representative to review.  The native title party representative was not in attendance, but was advised of the outcome of the conference and reminded of their compliance date.  No response was received.

1. At a status conference on 17 August 2011, both the native title representative and the grantee party representative were not in attendance and the Government party requested that the objection application be dismissed pursuant to s 148(b) of the Act on the basis of non-compliance with a direction of the Tribunal by the native title party. On 19 August 2011, I dismissed the expedited procedure objection application.

2. I find that the Buurabalayji Thalanyji native title party has failed to comply with a direction of the Tribunal and has provided no satisfactory explanation for its failure to do so.  In making the decision to dismiss this application for non-compliance, I adopt the Tribunal’s findings in Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner that the native title party has failed within a reasonable time to proceed with the application and to comply with the Tribunal’s directions having submitted no statements or contentions or supporting evidence despite having been informed of the possible consequences of a failure to comply.

3. I also note that the Government party will place the following condition on the grant of the proposed tenement.

   ‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Buurabalayji Thalanyji Aboriginal Corporation, the native title prescribed body corporate holding the determined native title of Thalanyji recognised in Federal Court application no. WAD6113 of 1993 (WC99/4), such request being sent by pre-paid post to reach the Licensee’s address, c/- McMahon Mining Title Services Pty Ltd, PO Box 8638, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Buurabalayji Thalanyji Aboriginal Corporation the Regional Standard Heritage Agreement endorsed by peak industry groups and Pilbara Native Title Service.’

Decision

1. Expedited procedure objection application WO10/1213 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
27 September 2011