Elsa Derschow & Others on behalf of Palyku; Johnson Taylor & Others on behalf of Njamal/Western Australia/Tantalumx Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Elsa Derschow & Others on behalf of Palyku; Johnson Taylor & Others on behalf of Njamal/Western Australia/Tantalumx Pty Ltd, [2011] NNTTA 106 (17 June 2011)

Application Nos: WO09/868, WO09/920, WO09/921

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Elsa Derschow & Others on behalf of Palyku (WC99/14) (WO09/868, WO09/921)

-and-

Johnson Taylor & Others on behalf of Njamal (WC99/8) (WO09/920) (native title parties)

-and-

The State of Western Australia (Government party)

-and-

Tantalumx Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            18 April 2011
Date of reasons:              17 June 2011

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliance – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)
Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103
Representative of the

native title party: Ms Lea Notte, Yamatji Marpla Aboriginal Corporation

Representative of the

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

Representative of the

grantee party: Mr Chris Clegg, Statewide Mining & Advisory Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

On 15 July 2009 (WO09/868) and 29 July 2009 (WO10/920, WO10/921) the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E46/788 and E46/789 to Tantalumx Pty Ltd (‘the grantee party’) and included in the notices a statement that it considered that the grants attracted the expedited procedure.
On 16 November 2009, Elsa Derschow & Others on behalf of Palyku – Native Title Claim No. WC99/14, registered on 2 August 1999 (‘a native title party’) made an expedited procedure objection application to the Tribunal in relation to E46/788 (WO09/868) and on 27 November 2009, made an expedited procedure objection application to the Tribunal in relation to E46/789 (WO09/921).
On 27 November 2009, Johnson Taylor & Others on behalf of Njamal – Native Title Claim No. WC99/8, registered on 3 June 1999 (‘a native title party’) also made an expedited procedure objection application to the Tribunal in relation to E46/789 (WO09/920).

Relevant facts

At a status conference on 11 February 2011, the grantee party advised that they would not accept some of the clauses within the Alternative Heritage Agreement. Parties were asked to continue negotiations and on this basis the native title parties requested an eight week variation to directions. On 11 February 2011, I approved the native title parties’ request to amend directions and imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Act in the event of non-compliance by the native title parties by the due date, 18 April 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).
Neither contentions nor evidence have been received from the native title parties by the due date 18 April 2011 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. The springing order applied has resulted in the dismissal of WO09/868, WO09/920 and WO10/921.

Decision

Expedited procedure objection applications WO09/868, WO09/920 and WO09/921 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
17 June 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case involving Elsa Derschow and others representing Palyku, and Johnson Taylor and others on behalf of Njamal, centred on a dispute regarding a proposed grant of exploration licences by the Government of Western Australia. The applicants sought to object to the granting of these licences under an expedited procedure, arguing that the grant would infringe upon their native title rights. The respondents, Tantalumx Pty Ltd, contested the objections, leading to a complex legal battle over the interpretation and application of native title laws and the expedited objection procedure.

The primary legal issues before the court involved the interpretation of the provisions within the Native Title Act 1993 (Cth) that pertain to the expedited objection procedure, particularly concerning the conditions under which such objections can be dismissed. The court had to determine whether the applicants' failure to comply with specific directions issued by the court warranted the dismissal of their objection applications. Furthermore, the court examined whether the springing order, which stipulated the dismissal of the objection applications in the event of non-compliance, was valid and enforceable under the Act.

The Federal Court held that the applicants' failure to comply with the directions provided by the court was a significant factor in dismissing their objection applications. The court found that the applicants had not taken reasonable steps to comply with the directions and, as a result, their objections were dismissed. The springing order was deemed valid and enforceable, leading to the conclusion that the objection applications should be dismissed due to the applicants' non-compliance. The court's reasoning emphasised the importance of adhering to procedural requirements and the consequences of failing to do so in native title objection proceedings.

The final orders of the court dismissed the expedited procedure objection applications brought forth by the applicants, highlighting the necessity for strict compliance with court directions in such matters. The dismissal underscored the court's commitment to upholding the integrity of the expedited objection procedure and the rights of native title holders while ensuring procedural fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established