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

[2009] NNTTA 170

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation/Western Australia/Cazaly Iron Pty Ltd, [2009] NNTTA 170 (18 December 2009)

Application No:                 WO09/322

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 – WD07/1 (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:              10 December 2009
Date of reasons:                 18 December 2009

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:          Ms Claire Malavaux, 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 11 March 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2027 (‘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. The proposed licence is located 83 kilometres north-west of Tom Price in the Shire of Ashburton and is 61.32 per cent overlapped by the Wintawari Guruma Aboriginal Corporation (WC97/78 – WD07/1 – determined on 1 March 2007) and 38.68 percent overlapped by the registered native title claim of the Puutu Kunti Kurrama and Pinikura People (WC01/5 - registered from 29 November 2001).

3. On 17 March 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.

4. On 10 July 2009 Angelina Cox & Others on behalf of Puutu Kunti Kurrama and Pinikura People made an expedited procedure objection application in relation to the proposed licence. This objection is still before the Tribunal.

Relevant facts

1. The Tribunal made directions on 2 November 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 30 November 2009. 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. During an adjourned preliminary conference convened on 11 November 2009, the grantee party representative, Mr Shannon McMahon, confirmed that he wished to proceed to inquiry.  The native title party representative agreed with the request and proposed that compliance dates stand.  The representative for the Government party, Mr Clyde Lannan supported the request to proceed to inquiry.

3. The Government party has complied with directions but neither contentions nor evidence have been lodged by the native title party. During the listing hearing on 10 December 2009, Mr Jerome Frewen representing the native title party made an application for a two month extension for compliance with directions on the basis that Law Business had commenced and further time was required to gather contentions and evidence. The Government party made application to dismiss the objection pursuant to s 148(b) of the Native Title Act1993 on the basis that the native title party had failed to comply by the compliance date.  On 10 December 2009 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 11 November 2009 that an inquiry was required, and has provided no satisfactory explanation for its failure to comply.

2. The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO09/470 relating to the Puutu Kunti Kurrama and Pinikura People is finalised.

Decision

1. Expedited procedure objection application WO09/322 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
18 December 2009