Wilfred Goonack & Ors on behalf of Uunguu/Western Australia/Mineralogy Pty Ltd

[2011] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Wilfred Goonack & Ors on behalf of Uunguu/Western Australia/Mineralogy Pty Ltd, [2011] NNTTA 69 (21 April 2011)

Application No:                 WO10/945

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

-and-

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

Wilfred Goonack & Ors on behalf of Uunguu (WC99/35) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Mineralogy Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              15 April 2011
Date of reasons:                 21 April 2011

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure within a reasonable time to proceed with 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, Kimberley Land Council

native title party:               Mr Reece O’Brien, Kimberley Land Council

Representative of the        

Government party:           Mr Dennis Jacobs, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Baljeet Singh, Mineralogy Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 10 March 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E80/4318 to Mineralogy Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 12 July 2010, Wilfred Goonack & Ors on behalf of Uunguu – Native Title Claim No WC99/35, registered from 30 June 2000 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. The Tribunal made directions on 22 July 2010, 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 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. A number of conferences were held between August 2010 and November 2010 where parties advised they were negotiating the terms of a Heritage Protection Agreement (‘HPA’). Directions were amended twice to allow negotiations to continue.

3. On 8 December 2010, the representative for the grantee party requested the matter proceed to inquiry as they wished to rely on the Regional Standard Heritage Agreement (‘RSHA’). Directions were amended to allow time for the native title party to gather contentions and evidence for the inquiry. A further extension of time was granted on 1 March 2011 as the native title party required additional time to comply with directions due to delays caused by the wet and law seasons.

4. The native title party requested a further extension to direction compliance dates on 8 April 2011, which I did not approve due to the amount of time already afforded to the native title party to comply for the inquiry. Subsequently, the Government and grantee parties made a request for dismissal of the objection pursuant to s 148(b) of the Act due to native title party non-compliance. The native title party opposed this request and stated that delays in providing contentions and evidence had been caused by changes to levels of personnel and resources as well as an exceptional wet season.

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. In this matter, the native title party was represented by the Kimberley Land Council (‘KLC’) the designated Native Title Representative Body under the Act for the area of the claim which has special responsibility for representing claimants in relation to native title determination proceedings and associated future acts. The KLC and its legal representatives would be fully aware of the need to comply with Tribunal directions to enable contentions and evidence to support the objection application to be placed before the Tribunal in a timely manner. No satisfactory explanation has been offered for the failure to comply.

Decision

1. Expedited procedure objection application WO10/945 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
21 April 2011