Tjurabalan Native Title Lands Aboriginal Corporation/Western Australia/Phosphate Australia Limited

[2012] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Tjurabalan Native Title Lands Aboriginal Corporation/Western Australia/Phosphate Australia Limited, [2012] NNTTA 42 (27 April 2012)

Application No:                WO11/571

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Tjurabalan Native Title Lands Aboriginal Corporation (WC95/74) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Phosphate Australia Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  John Sosso, Deputy President
Place:  Perth
Date of dismissal:            23 April 2012
Date of reasons:              27 April 2012

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:             Ms Ania Maszkowski, Kimberley Land Council

Representative of the     

Government party:          Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party:                  Ms Claire Hornsby, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 20 January 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4500 to Phosphate Australia Limited (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 19 May 2011, Tjurabalan Native Title Lands Aboriginal Corporation – Native Title Claim No WC95/74, registered from 25 October 1995, (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to E80/4500 (WO11/571).

Relevant facts

1. On 7 September 2011 the grantee party representative advised that their client wished to proceed to inquiry.

2. At an adjourned listing hearing on 8 March 2012 the native title party representative advised that they had been unable to collect the necessary evidence and requested an extension to compliance dates. The Government party and the grantee party had previously complied and made application that the matter be dismissed under s 148(b).

3. The Tribunal made Directions on 9 March 2012, requiring the native title party 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 in the event of 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 10 April 2012. 

4. On 21 March 2012 the native title party representative advised the Tribunal that due to unpredictable and extreme weather conditions they were unable to access the Tjurabalan country to gather necessary evidence. On this basis the native title party representative requested a further short extension to the compliance dates. The proposed direction dates were granted on 23 March 2012 requiring the native title party to produce contentions and evidence on 23 April 2012. The amended Directions retained the springing order imposed on 9 March 2012.

5. Neither contentions nor evidence were produced by the native title party by close of business 23 April 2012.  Consequently, the expedited procedure objection application is dismissed in accordance with the Directions.

6. The principles governing the making of “springing” or “guillotine” Directions were explained in Dixon v Northern Territory (2002) 169 FLR 103. I adopt those principles for the purpose of this decision.

Decision

1. Expedited procedure objection application WO11/571 is dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

John Sosso
Deputy President
27 April 2012