The Buurabalyji Thalanyji Aboriginal Corporation/Western Australia/Shaw River Resources Ltd

[2009] NNTTA 117

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalyji Thalanyji Aboriginal Corporation/Western Australia/Shaw River Resources Ltd, [2009] NNTTA 117 (29 September 2009)

Application No:                 WO09/239

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

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

The Buurabalyji Thalanyji Aboriginal Corporation – WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Shaw River Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               18 September 2009

Date of reasons:                 29 September 2009

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

Representatives of the       Ms Claire Malavaux, Department of Mines and Petroleum

Government party:           Mr Greg Abbott, Department of Mines and Petroleum

Representative of the        Mr Chris Clegg,

grantee party:  Statewide Tenement & Advisory Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 20 March 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1918 to Shaw River Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 24 March 2009, The Buurabalyji 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. On 1 July 2009 the Tribunal amended the directions originally made requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted.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 a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 24 August 2009. 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. The Government party has complied with directions but neither contentions nor evidence has been received from the native title party.

2. On 28 August 2009, the grantee party made written application to the Tribunal to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. On the same date, the Tribunal wrote to all parties seeking submissions in response.  The request was supported by the Government party however no submissions were received from the native title party.

3. At a listing hearing on 3 September 2009, Mr Frewen for the native title party requested an additional eight weeks to consult with his clients and allow for further negotiations with the grantee party.  Parties agreed to allow two weeks for Mr Frewen to consult directly with the grantee party about questions raised regarding the authority to act and understanding of the situation of Mr Clegg, the grantee party’s representative.

4. At a listing hearing on 17 September 2009, the grantee party and Government party sought dismissal of the objection application 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. The representative for the native title party was not available for the adjourned listing hearing. On the same date, the Tribunal advised Mr Frewen in writing of the request to dismiss the objection pursuant to s 148(b) of the Act. No further submissions from the native title party have been received. On 18 September 2009, I dismissed the expedited procedure objection application. I find that the native title party has failed to comply with a direction of the Tribunal and has provided no satisfactory explanation for its failure. 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.

Decision

1. Expedited procedure objection application WO09/239 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
29 September 2009