The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Mine Services and Construction Pty Ltd

[2012] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Mine Services and Construction Pty Ltd, [2012] NNTTA 30 (19 March 2012)

Application No:                 WO11/487

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-

Mine Services and Construction Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              11 March 2012

Date of reasons:                 19 March 2012

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:                   Mr Greg Abbott,  M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 18 March 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licence E08/2166 (the proposed licence) to Mine Services and Construction Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 7 April 2011, 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 21 June 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 native title party was to provide its contentions and documentary evidence on or before 14 November 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. At a status conference on 12 October 2011 the grantee party representative advised that he had been having a problem getting instructions from his client but it looked like the matter was proceeding to inquiry.  On that basis, the native title party requested a four month variation to directions as law business would be commencing in November and going to February 2012.  The Government party requested a two month variation to directions which the grantee party supported.  I approved a two month variation to directions and the native title party was to comply on or before 10 January 2012.

3. At a further status conference on 16 November 2011, the grantee party representative confirmed that his client had instructed that the matter proceed to inquiry.  The native title party requested that directions be varied to enable compliance for the native title party to be moved out to February.  As the Government party and the grantee party did not oppose this request I approved the variation to directions with compliance by the native title party being on or before 20 February 2012.

1. At the listing hearing on 1 March 2012, the native title party representative advised that the native title party still wished to comply and requested a further six week extension to directions. The Government party requested that the objection application be dismissed under s 148(b) of the Act for failure by the native title party to comply with the Tribunal’s directions. The grantee party supported that request.

2. On 11 March 2012 I dismissed the expedited procedure objection application.  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 contentions or documentary 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 1998 (WC99/45), such request being sent by pre-paid post to reach the Licensee’s address, c/- M & M Walter Consulting, PO Box 8197, Subiaco East WA 6008 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 (“RSHA”) endorsed by peak industry groups and Pilbara Native Title Service.

Decision

1. Expedited procedure objection application WO11/487 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
19 March 2012