Wilfred Goonack & Others on behalf of Uunguu; Delores Cheinmora & Others on behalf of Balanggarra/Western Australia/Clara Resources Pty Ltd

[2012] NNTTA 33

NATIONAL NATIVE TITLE TRIBUNAL

Wilfred Goonack & Others on behalf of Uunguu; Delores Cheinmora & Others on behalf of Balanggarra/Western Australia/Clara Resources Pty Ltd, [2012] NNTTA 33 (28 March 2012)

Application Nos:                WO11/389, WO11/425, WO11/426

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

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

-and-

Delores Cheinmora & Ors on behalf of Balanggarra (WC99/47) (native title parties)

-and-

The State of Western Australia (Government party)

-and-

Clara Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              16 March 2012
Date of reasons:                28March 2012

Catchwords:  Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

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

Representative of the        

native title parties:             Ms Ania Mazskowski, Kimberley Land Council

Representative of the        

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

Representative of the        

grantee party:                   Ms Ros Dawson, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 1 December 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licences E80/4374 and E80/4375 to Clara Resources Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On 1 April 2011, Wilfred Goonack & Others on behalf of Uunguu Native Title Claimants (WC99/35) registered from 30 June 2000 (a native title party), made an expedited procedure objection application to the Tribunal in relation to E80/4374 (WO11/389).

3. On 1 April 2011, Delores Cheinmora & Others on behalf of Balanggarra Native Title Claimants (WC99/47) registered from 9 December 2004 (a native title party) also made an expedited procedure objection application to the Tribunal in relation to E80/4374 (WO11/425) and E80/4375 (WO11/426).

Relevant facts

1. On 19 April 2011 (WO11/389) and 3 May 2011 (WO11/425, WO11/426), the Tribunal made directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. These directions allowed a four month period from the closing date for objections to allow the parties to negotiate to see if the objection could be resolved by consent. The native title party was to provide its contentions and documentary evidence on or before 1 August 2011. The directions contain a statement that the objections 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. On 17 May 2011, the native title party representative advised that these tenements partially extend over an Aboriginal Reserve, and that a heritage protection agreement had been sent to the grantee party for their consideration.

3. At the status conference on 13 July 2011 the grantee party representative advised that there were some issues in relation to costs and that the tenement applications may be withdrawn. The native title party representative stated that excision of the affected portions of the tenements could be considered. The grantee party representative requested a four week variation to compliance dates in order to consider this.  This request was approved on 18 July 2011.  The agreement was still under review as at 7 September 2011, with no clear direction from the grantee party. 

4. At the adjourned status conference on 28 September 2011 the grantee party representative stated that their client now wished to proceed to inquiry on these matters. The native title party representative requested a four week variation to compliance dates in order to clarify with the claim lawyer as to whether relevant affidavits had already been collected.  This request was approved on 12 October 2011.

5. At the listing hearing on 2 February 2012 the native title party representative stated that a Working Group meeting was being organised, although no dates had been set, and all relevant evidence would be collected at that time. The native title party representative requested a six week extension to their compliance dates in order to allow time for this meeting to take place. The grantee party remained neutral; the Government party supported the request however made application that WO11/389, WO11/425 and WO11/426 be dismissed under s 148(b) of the Native Title Act1993 (Cth) if there was non-compliance by 5 March 2012. On this basis I approved the native title party representative’s request on 7 February 2011.

6. On 16 March 2012 I dismissed the expedited procedure objection applications WO11/389, WO11/425 and WO11/426 for non-compliance with the Tribunal’s directions (see Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266).

7. Neither contentions nor evidence have been received from the native title parties by 5 March 2012 and no explanation has been provided for the failure to comply with the Tribunal’s directions despite the native title parties having been informed of the possible consequences of a failure to comply.

Decision

1. Expedited procedure objection applications WO11/389, WO11/425 and WO11/426 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
28 March 2012