Valerie Ashburton on behalf of the Thalanyji People/Western Australia/Paul Winston Askins

[2007] NNTTA 85

NATIONAL NATIVE TITLE TRIBUNAL

Valerie Ashburton on behalf of the Thalanyji People/Western Australia/Paul Winston Askins, [2007] NNTTA 85 (27 September 2007)

Application No:                 WO07/315

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

-and-

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

Valerie Ashburton & Others on behalf of the Thalanyji People – WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Paul Winston Askins (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              24 September 2007

Date of reasons:                 27 September 2007

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 event of non-compliance – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(b)

Cases:Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner

Representative of the        

native title party:               Mr Jerome Frewen, Desert Management Pty Ltd

Representatives of the       Mr Greg Abbott, Department of Industry and Resources

Government party:           Ms Jan Mason, Department of Industry and Resources

Representative of the        

grantee party:                    Mr Paul Winston Askins

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 25 April 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E08/1690 to Paul Winston Askins (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 1 May 2007, Valerie Ashburton & Others on behalf of the Thalanyji People – Native Title Claim No. WC99/45, registered from 7 February 2000 - (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

1. On 16 May 2007 the Tribunal made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted.  These directions allowed a four month period of time from the objection closing date in which parties could negotiate with a view to securing withdrawal of the objection.  On 24 July 2007 an adjourned preliminary conference was convened by the Tribunal at which the grantee party, Mr Paul Winston Askins, indicated that the grantee party was not prepared to accept the alternative heritage agreement offered by the native title party and requested that directions be amended to facilitate an expeditious referral to the Tribunal’s inquiry process because no agreement was possible.  The representative for the native title party, Mr Jerome Frewen, opposed the grantee party’s request on the basis that advice of its position was only provided the previous day.

2. At Mr Frewen’s request, on 30 July 2007 I convened a directions hearing for which the native title party representative was unavailable despite being advised of the date for the hearing on 24 July 2007. The Government party, supported by the grantee party, made application for directions of 16 May 2007 to be amended to hasten the dates for compliance and for a springing order to be imposed dismissing the objection application in the event of non-compliance on the part of the native title party. Accordingly, and in the absence of submissions from Mr Frewen either prior to or during the directions hearing, I amended initial directions, requiring the native title party to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 24 September 2007. The amended directions also imposed a springing order which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Native Title Act if there is non-compliance by close of business on the date specified.  In making the decision to impose the springing order I adopted the Tribunal’s findings in Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner at [15] – [21]. The native title party failed to comply by the due date.

Decision

1. Expedited procedure objection application WO07/315 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
27 September 2007