Western Australia/Hans August Nicholas Strindberg/Violet Drury and others on behalf of Nanda

[2001] NNTTA 90

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/Hans August Nicholas Strindberg/Violet Drury and others on behalf of Nanda, [2001] NNTTA 90 (4 September 2001)

Application No:        WO00/437

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

- and -

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

The State of Western Australia (government party)

- and -

Hans August Nicholas Strindberg (grantee party)

- and -

Violet Drury and others on behalf of Nanda (native title party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Ms Jennifer Stuckey-Clarke, Member
Place:  Perth
Date:  4 September 2001

Catchwords:                   Native Title-future act-proposed grant of Prospecting Licence-expedited procedure objection application-application for Prospecting Licence withdrawn-objection dismissed       

Legislation:               Native Title Act 1993 (Cth)

REASONS FOR DISMISSAL

Background

1. By notice dated 27 October 2000 issued pursuant to s.29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the State”) advised its intention to grant prospecting licence 70/1395 (‘the prospecting licence”) to Hans August Nicholas Strindberg (“the Grantee”). The prospecting licence was over an area of 177.32 hectares located 58 kilometres north east of Northampton, (lat. 27^o 56 minutes, long. 114^o 59minutes).  The notice explained that the grant of a Prospecting Licence authorises the applicant to explore for minerals for a term of four years from the date of grant.  The notice included the statement:

“the State of Western Australia considers that these acts are acts attracting the expedited procedure.”

1. The notification date was 1 November 2000.

1. On 2 November 2000, Violet Drury and others on behalf of Nanda (“the Objectors”) lodged an objection (by way of Form 4 made pursuant to the Native Title Tribunal Regulations 1993) with the Tribunal to the statement in the s.29 notice that the grant of the prospecting licence attracted the expedited procedure.

1. In paragraph 7 of Form 4, Objectors are required to include a statement of reasons why the proposed act is not one attracting the expedited procedure, including a statement of the likely impact of the act on the community or social activities of the native title holders, areas or sites of particular significance and any lands or waters concerned.  The Objectors provided in paragraph 7, the following statement:

   “The grant of the prospecting licence will interfere with the many Aboriginal sites of significance in the area and constitutes a major disturbance to the land and to the claimant’s attachment (including spiritual attachment) to the land.”

1. Paragraph 8 of Form 4 requires Objectors to outline the type of evidence that will be adduced before the Tribunal in support of the objection. The outline is as follows:

2. Historical (including oral history)

3. Anthropological

4. Genealogical

5. Linguistic

1. On 28 November 1996, the Objectors’ Application for Determination of Native Title (WC96/111) was registered by the Tribunal in relation to the claim area, which includes the area of tenement P70/1395. .  The Tribunal accepted the objection application on 8 March 2001.

1. The State, Grantee and Objectors were notified of the objections and a preliminary conference was held on 21 March 2001.  The Grantee did not attend this telephone conference.

1. The State lodged with the Tribunal a statement of its contentions on 11 May 2001 and a copy of the documents upon it proposed to rely on 8 May 2001.  The Objectors lodged their affidavit evidence of Nicholas Paul Green (Director of Research, Yamatji Land & Sea Council) and their contentions on 23 May 2001. Additional contentions were submitted by the Objectors on 20 August 2001.

1. The Grantee was not in attendance for listing hearings convened on 6 June 2001 and 15 June 2001 nor for a listing hearing convened before Deputy President Sumner on 13 July 2001. At final listing hearing before Deputy President Sumner on 31 July 2001, the Objectors confirmed that they would not withdraw the objection, and the State confirmed that it would not withdraw the s29 notice although urged by Deputy President Sumner to withdraw its statement in the s29 notice that it considered the proposed grant to be an act attracting the expedited procedure.

1. I was appointed as the Member to conduct the inquiry on 31 July 2001.  I convened a final listing hearing before me on 24 August 2001.

1. On 21 August 2001, the State advised the Tribunal that on 9 August 2001 the Grantee had discontinued his application for the prospecting licence.

1. I take this opportunity to comment upon the failure of the State to advise the Tribunal in a timely way of the discontinuance of the Grantee’s application for the prospecting licence which forms the basis of these proceedings. Such failure to notify the Tribunal immediately of this development has led to the waste of valuable Tribunal resources towards preparation of the reasons for determination of this matter and has also led presumably to the waste of valuable resources so far as the Objectors are concerned in as much as the Yamatji Land and Sea Council submitted a Statement of Further Contentions to the Tribunal on 20 August 2001 which need not have been prepared if timely notification of the discontinuance of the application had been given by the State. It is to be hoped that in the future the State will ensure that timely notification of the discontinuance of such applications is made to the Tribunal and other parties.

Decision

[13] There is no longer any proposal from the State to do a future act and accordingly the objection application is dismissed pursuant to s 148(a) of the Native Title Act 1993(Cth).

Jennifer Stuckey-Clarke
Member
4 September 2001