Wintawari Guruma Aboriginal Corporation/Western Australia/Cazaly Iron Pty Ltd

[2010] NNTTA 67

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation/Western Australia/Cazaly Iron Pty Ltd, [2010] NNTTA 67 (17 May 2010)

Application No:                 WO09/573

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

-and-

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

Wintawari Guruma Aboriginal Corporation – WC97/89 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Cazaly Iron Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               14 May 2010
Date of reasons:                 17 May 2010

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:Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WO07/510-512, [2008] NNTTA 17 (7 February 2008), Hon C J Sumner

Representative of the        

native title party:              Mr Jerome Frewen, Desert Management Pty Ltd

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:  Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 14 August 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2043 (‘the proposed licence’) to Cazaly Iron Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 14 August 2009 the Wintawari Guruma Aboriginal Corporation (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.

Relevant facts

1. The Tribunal made directions on 15 September 2009 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 affidavit on or before 13 April 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.

2. At the preliminary conference on 12 January 2010, the grantee party representative confirmed that his client wished to proceed to inquiry with compliance dates to remain as set.  The Government party supported both the requests to proceed to inquiry and to leave compliance dates as originally set.  The native title party representative was unavailable for the conference and was advised of the request to proceed to inquiry via email.  No request was received from the native title party to amend compliance dates.

3. The Government party has complied with directions but neither contentions nor evidence have been lodged by the native title party. 

4. On 6 May 2010 a listing hearing was convened, at which the native title party was unrepresented. The Government party requested dismissal of the objection pursuant to s 148(b) of the Native Title Act 1993 due to native title party non-compliance but agreed to a one week adjournment to allow comments to be sought from the native title party.  The grantee party supported the request for dismissal and the one week adjournment.

5. On 13 May 2010, Mr Jerome Frewen, representing the native title party, made application for a six week extension of compliance dates on the basis that feedback needed to be sought from the lawyer for Wintawari Guruma. The Government party reiterated the request to dismiss the objection pursuant to s 148(b) of the Native Title Act 1993 on the basis that the native title party had failed to comply by the compliance date.  The grantee party supported the request for dismissal.  On 14 May 2010 I dismissed the expedited procedure objection application.

Conclusion

1. I have previously considered similar cases involving the same native title party as in this present matter (for example, Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WO07/510-512, [2008] NNTTA 17 (7 February 2008)). I conclude that dismissal of the objection is justified because the native title party has failed to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply. The native title party was aware from at least 29 June 2009 that an inquiry was required, and has provided no satisfactory explanation for its failure to comply.

Decision

1. Expedited procedure objection application WO09/573 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
17 May 2010