Wanjina-Wunggurr (Native Title) Aboriginal Corporation; Delores Cheinmora and Others on behalf of Balanggarra (Combination)/Western Australia/Timothy Vincent Tatterson, Geotech International Pty Ltd

[2010] NNTTA 129

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation; Delores Cheinmora and Others on behalf of Balanggarra (Combination)/Western Australia/Timothy Vincent Tatterson, Geotech International Pty Ltd [2010] NNTTA 129 (12 August 2010)

Application Nos:      WO09/914, WO09/919

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

-and-

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

Wanjina-Wunggurr (Native Title) Aboriginal Corporation – WC99/11 (WO09/914)

Delores Cheinmora and Others on behalf of Balanggarra (Combination) – WC99/47 (WO09/919) (native title parties)

-and-

The State of Western Australia (Government party)

-and-

Timothy Vincent Tatterson, Geotech International Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            2 August 2010
Date of reasons:              12 August 2010

Catchwords:  Native title – future acts – proposed grant of exploration licence – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliant – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b)

Cases: Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103

Representatives of the      Ms Ania Maszkowski, Kimberley Land Council

native title parties:            Ms Hema Hariharan, Kimberley Land Council

Representatives of the      Mr Greg Abbott, Department of Mines and Petroleum

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

Representative of the

grantee party:  Ms Melissa Greer, Iron Mountain Mining Limited

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 29 July 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4243 (‘the proposed licence’) to Timothy Vincent Tatterson and Geotech International Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. On 30 November 2009 Wanjina-Wunggurr (Native Title) Aboriginal Corporation – native title claim application no. WC99/11 determined on 27 August 2004 (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. On 30 November 2009 Delores Cheinmora and Others on behalf of Balanggarra (Combination) – native title claim application no. WC99/47 registered on 9 December 2004- (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

4. The proposed licence, totalling 178.98 square kilometres, is located 188 kilometres northwest of Wyndham in the Shire of Wyndam-East Kimberley and overlaps the Wanjina-Wunggurr determination area (WC99/11) at 2.51 per cent and the Balanggarra native title claim application (WC99/47) at 97.49 per cent.

Relevant facts

1. The Tribunal made directions on 14 December 2009 for 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 parties were to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 29 March 2010. The directions contain a statement that an 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.

1. At a preliminary conference held on 12 January 2010 the grantee party advised agreements for both native title parties would be reviewed.  Four status conferences were held between 24 February 2010 and 21 April 2010 during which parties discussed the need for two agreements (i.e. for each native title party objection application in relation to the proposed licence).  The native title parties confirmed community benefits would be calculated pro-rata parties began negotiations over the wording of the community benefits clause.

2. Directions were amended on 22 March 2010 and 29 April 2010 for native title parties compliance due on 8 June 2010 and grantee party compliance on 15 June 2010.  The State complied with previous direction dates, submitting evidence on 26 March 2010 and a statement of contentions on 12 April 2010.

3. On 18 May 2010, the Tribunal received an email from the grantee party advising that the rights to the proposed licence had been sold and that a new representative would take carriage of the matters.

4. Both the native title parties and grantee party representatives were unavailable for a status conference held on 2 June 2010. The State requested the matters to proceed to inquiry on the current direction dates, and parties were duly informed. At a further status conference held on 9 June 2010 the State requested the objections be dismissed pursuant to s 148(b) of the Act due to native title parties’ non-compliance. The native title parties requested an amendment to directions for an additional two weeks to comply as they were under the impression that agreement was close. The new grantee party representative advised that the practice of the new owner of the proposed licence was to stand by the Regional Standard Heritage Agreement (‘RSHA’) but advised comments would be sought in relation to the previous negotiations between parties. The grantee party did not have any comments in relation to the dismissal or direction amendment request. The request was approved on 15 June 2010 and the matter adjourned to the listing hearing. Grantee party compliance was received on 15 June 2010.

5. On 24 June 2010, two days after the due date for compliance, the native title parties requested amendment to direction dates to allow time for further negotiations with the grantee party. The grantee party advised that they did not oppose the request to show good faith but would not agree to the terms offered in the alternative heritage agreement. The State opposed the request and made a further request for dismissal of the objection applications pursuant to s 148(b) of the Act due to native title party non-compliance. The native title parties’ amendment request was approved on 30 June 2010, requiring native title party compliance by 13 July 2010.

6. At the listing hearing on 22 July 2010 the native title parties’ representative advised that multiple attempts had been made to collect affidavits but had encountered difficulty due to unseasonal weather and made a request for an extension of compliance to 2 August 2010. Both the State and grantee party opposed the request with the State requesting dismissal of the objections. The grantee party supported this request. The native title parties request for extension was approved on 23 July 2010. The Tribunal’s directions imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Act if there is non-compliance by close of business on the due date, being 2 August 2010 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

7. The Government party originally requested these matters proceed to inquiry on 2 June 2010 and it has been clear to the native title party since 24 June 2010 that there was no prospect of a mutually agreed outcome and therefore that contentions and evidence for an inquiry were necessary.  The native title parties have failed to comply by the due date and the springing order has resulted in dismissal of the application.

Decision

1. Expedited procedure objection applications WO09/914 and WO09/919 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
12 August 2010