Vanessa Thomas & Ors on behalf of Mantjintjarra Ngalia #2/Western Australia/Dunstan Holdings Pty Ltd

[2013] NNTTA 160

NATIONAL NATIVE TITLE TRIBUNAL

Vanessa Thomas & Ors on behalf of Mantjintjarra Ngalia #2/Western Australia/Dunstan Holdings Pty Ltd [2013] NNTTA 160 (26 November 2013)

Application Nos:              WO2013/0083

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Vanessa Thomas & Ors on behalf of Mantjintjarra Ngalia (WC2006/006) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Dunstan Holdings Pty Ltd (grantee parties)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date of dismissal:            25 November 2013
Date of reasons:              26 November 2013

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliance – objection applications 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:             Andrew Burke, Goldfields Land and Sea Council

Representative of the     

Government party:          Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party:                  Greg Abbott, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 2 October 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E38/2759 to Dunstan Holdings 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 January 2013, the Mantjintjarra Ngalia #2 claim group (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation E38/2759 (WO2013/0083).

Relevant facts

1. At the status conference on 10 July 2013, all parties were looking to agreement. The expectation was that this matter would progress quickly and both parties were awaiting signatures.  

2. On 5 September 2013, the grantee party advised that the matter go to inquiry in conjunction with the linked matter WO2013/0082 and submitted contentions even though no directions had been set.

3. The Tribunal set specific directions on 12 September 2013, 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 failed to comply with the Tribunal’s directions and on 18 October 2013 the Government party requested the matter be dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth). The native title party responded requesting a four week extension in compliance dates.

4. The Tribunal made directions on 8 November 2013 replacing those issued on 18 September 2013. 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 if there is 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 25 November 2013.  In imposing the springing order I considered and adopted Deputy President Sosso’s reasons in Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103, (at [24]-[25]).

5. Neither contentions nor evidence have been received from the native title party by the due date 25 November 2013 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.  The springing order applied has resulted in the dismissal of WO2013/0083.

Decision

1. As the native title party has failed to comply with Directions made by the Tribunal on 8 November 2013, the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth) in accordance with the terms of the Directions.

Helen Shurven
Member
26 November 2013