Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Swancove Enterprises Pty Ltd

[2011] NNTTA 126

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Swancove Enterprises Pty Ltd, [2011] NNTTA 126 (4 July 2011)

Application No:                 WO10/1419

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

-and-

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

Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WC99/11) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Swancove Enterprises Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Hon C J Sumner, Deputy President

Place:Perth

Date of dismissal:            28 June 2011

Date of reasons:              4 July 2011

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:Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representatives of the       Ms Ania Maszkowski & Mr Reece O’Brien

native title party:               Kimberley Land Council

Representative of the        

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

Representative of the

grantee party:  Ms Sherry Hingston, Iron Mountain Mining

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 30 June 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4430 (‘the proposed licence’) to Swancove Enterprises Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 1 November 2010, Wanjina-Wunggurr (Native Title) Aboriginal Corporation – Native Title Claim No WC99/11, determined on 27 August 2004 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. On 7 December 2010, 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. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 28 February 2011. 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.

2. At a status conference on 2 February 2011 the representative for the grantee party, Ms Sherry Hingston, advised the Tribunal that the grantee party was not prepared to enter into the Heritage Protection Agreement offered by the native title party in relation to the proposed licence and requested that the matter proceed to inquiry.

3. The Government party has complied with directions and the grantee party has stated that it will rely on the Government party’s contentions.  Neither contentions nor evidence have been received from the native title party, the last compliance date being 24 June 2011.

4. On 24 June 2011 the representative for the native title party, Mr Reece O’Brien, advised the Tribunal that the affidavit evidence gathered on behalf of the native title party could not be submitted and a further two weeks would be required in order to find a more appropriate deponent. Accordingly, Mr O’Brien requested an extension to compliance by the native title party to 11 July 2011. On 28 June 2011 the Government party advised the Tribunal that it did not support the request and asked that the objection application be dismissed pursuant to s 148(b) of the Act on the basis that the native title party had failed to comply with directions. The grantee party did not respond to the native title party’s request for an extension; however, the grantee party instructed the Tribunal on 23 May 2011 that it would not support any further extension. On 28 June 2011 I dismissed the objection application.

5. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application.

6. The native title party has known that the matter was proceeding to inquiry since 2 February 2011.   The Tribunal has amended directions on three separate occasions to allow the native title party to gather and submit the necessary evidence.  It is the native title party’s responsibility to ensure that contentions and evidence are submitted in a timely manner and in accordance with the Tribunal’s directions.  In the circumstances, the native title party has been given sufficient opportunity to comply with the directions of the Tribunal and it would be unfair to prejudice the other parties with further delays.

7. I find that the native title party has failed to proceed with the objection application within a reasonable time and comply with the Tribunal’s directions. The native title party has submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.

Decision

1. Expedited procedure objection application WO10/1419 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
4 July 2011