The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Pickaxe City Pty Ltd

[2011] NNTTA 181

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Pickaxe City Pty Ltd, [2011] NNTTA 181 (10 October 2011)

Application No:                 WO10/1743

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-

Pickaxe City Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              29 September 2011

Date of reasons:                 10 October 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:                   Mr Greg Abbott,  M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 15 December 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licence E08/2216 (the proposed licence) to Pickaxe City Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 30 December 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 3 May 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 evident by 15 August 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 17 May 2011 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 29 July 2011, the Government party complied with directions.  At a status conference on 10 August 2011, the grantee party representative advised that his client had requested that the matter proceed to inquiry. On that basis the native title party representative requested a variation of ten weeks to directions.  The grantee party and the Government party would only support a six week variation.  The request for a six week variation to directions was approved on 11 August 2011 with native title party compliance on or before 26 September 2011.

4. Neither contentions nor evidence were received from the native title party by the due date of 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. On 27 September 2011 the Government party requested that the matter be dismissed pursuant to s 148(b) of the Act for failure by the native title party to comply with the Tribunal’s directions. On 29 September 2011 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 .

5. 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 (native title party) recognised in Federal Court application no. WAD6113 of 1993 (WC99/45), and/or Puutu Kunti Kurrama & Pinikura 2 People, the applicants in Federal Court application no WAD126 of 2005 (WC05/4) 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 and/or Puutu Kunti Kurrama & Pinikura 2 People the applicants in Federal Court application no WAD126 of 2005 (WC05/4), the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and Pilbara Native Title Service.’

Decision

1. Expedited procedure objection application WO10/1743 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
10 October 2011