Douglas J Comeagain on behalf of the Mullewa Wadjari Community/Western Australia/Carlinga Mining Pty Ltd

[2008] NNTTA 142

NATIONAL NATIVE TITLE TRIBUNAL

Douglas J Comeagain on behalf of the Mullewa Wadjari Community/Western Australia/Carlinga Mining Pty Ltd, [2008] NNTTA 142 (14 October 2008)

Application No:                 WO08/317

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

-and-

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

Douglas J Comeagain on behalf of the Mullewa Wadjari Community (WC96/93) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Carlinga Mining Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               9 October 2008
Date of reasons:                 14 October 2008

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:Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/ Geotech International Pty Ltd, NNTT WO07/828 [2008] NNTTA 41 (4 April 2008), Hon C J Sumner

Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829 [2008] NNTTA 46 (11 April 2008), John Sosso

Representative of the        

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

Representative of the        

Government party:           Mr Greg Abbott, Department of Industry and Resources

Representative of the        

grantee party:  Mr Mike Joyce, Giralia Resources NL

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 30 January 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1344 (‘the proposed licence’) to Carlinga Mining 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 sixty-seven kilometres north west of Yalgoo in the Shires of Murchison and Yalgoo and is entirely overlapped by both the registered native title claim of Wajarri Yamatji (WC04/10 – registered from 1 December 2005) and by the registered native title claim of the Mullewa Wadjari Community (WC96/93 - registered from 19 August 1996).

3. On 1 March 2008 Douglas J Comeagain on behalf of the Mullewa Wadjari Community (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO08/317).  On 29 February 2008 Ike Simpson and Others on behalf of Wajarri Yamatji also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO08/318).  The latter objection was withdrawn by agreement on 15 April 2008.

Relevant facts

1. In relation to WO08/317 the Tribunal made directions on 3 April 2008 for 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 affidavits on or before 22 September 2008. 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. The Government party has provided a statement of contentions and supporting evidence in compliance with directions and the grantee party has indicated that it will rely on the submissions provided by the Government party.  Neither contentions nor evidence has been provided by the native title party.

Inquiry and findings

1. At a Listing Hearing held on the 9 October 2008 the Government party, supported by the grantee party, made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. Despite written notice of the date and time for the hearing the representative for the native title party was unavailable and no submissions have been received by the Tribunal to indicate the reason for this failure to attend or for the failure of the native title party to comply.

2. I find that the native title party has failed to comply with a direction of the Tribunal and has provided no satisfactory explanation for its failure.  In making the decision to dismiss this application for non-compliance I adopt the Tribunal’s findings in Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Geotech International Pty Ltd, NNTT WO07/828, [2008] NNTTA 41 (4 April 2008) at [9]-[10] and Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829, [2008] NNTTA 46 (11 April 2008), John Sosso at [10]-[11].

Decision

1. The native title party has failed to comply with a direction by the Tribunal and accordingly the objection application WO08/317 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
14 October 2008