Evelyn Gilla & Others on behalf of Yugunga-Nya /Western Australia/Drill Gold Pty Ltd, William Robert Richmond

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya /Western Australia/Drill Gold Pty Ltd, William Robert Richmond, [2011] NNTTA 204 (25 November 2011)

Application Nos: WO11/402, WO11/405

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Evelyn Gilla & Others on behalf of Yugunga-Nya (WC99/46) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Drill Gold Pty Ltd, William Robert Richmond (grantee parties)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            21 November 2011
Date of reasons:              25 November 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 applications 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 Alissa Lovering, Yamatji Land and Sea Council

Representative of the

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

Representative of the

grantee parties: Ms Tanya Wood, Astro Resources NL

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 1 December 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licences E51/1448 and E51/1452 to Drill Gold Pty Ltd and William Robert Richmond (the grantee parties) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On 1 April 2011, Evelyn Gilla & Others on behalf of Yugunga-Nya – Native Title Claim No WC99/46, registered from 12 June 2000, (the native title party) made expedited procedure objection applications to the Tribunal in relation to E51/1448 (WO11/402) and E51/1452 (WO11/405).

Relevant facts

On 19 April 2011, 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.
At the status conference on 29 June 2011, all parties were looking to agreement. Some minor issues arose, however the expectation was that these matters would progress quickly. The representative for the grantee parties sent a marked up agreement to the native title party representative for review but was then advised by the former tenement manager that an agreement was already in place.
At the adjourned status conference on 2 November 2011, the representative for the grantee parties advised that the agreements had been signed and were awaiting finalisation. The native title party representative has failed to attend conferences or respond to emails and the state requested that a springing order be placed on the native title party compliance date of the 21 November 2011. This request was supported by the grantee.
The Tribunal made directions on 15 November 2011, 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 directions imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Native Title Act if there is non-compliance by the native title party. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit on or before 21 November 2011. In imposing the springing order I considered and adopted Deputy President Sosso’s reasons in Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103.
Neither contentions nor evidence have been received from the native title party by the due date 21 November 2011 and no explanation has been provided for the failure to comply with the Tribunal’s directions despite the native title party having been informed of the possible consequences of a failure to comply.

Decision

Expedited procedure objection applications WO11/402 and WO11/405 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
25 November 2011

Evelyn Gilla and others, on behalf of the Yugunga-Nya, sought to object to the proposed grant of exploration licences by Western Australia to Drill Gold Pty Ltd. The dispute involved the potential impact of these licences on native title rights and was heard in the Federal Court of Australia. The applicants argued that the proposed grants might interfere with their native title rights and sought to halt the process under an expedited procedure.

The legal issues before the court were primarily whether the applicants had complied with the directions given by the court in their objection applications and whether the court should dismiss the objections if the applicants failed to comply with those directions. The court had to balance the need for a swift resolution in such matters against the importance of ensuring that all parties adhered to procedural requirements. The court also needed to consider whether the applicants had demonstrated a sufficient likelihood of proving their native title rights to warrant halting the proposed exploration activities.

The court found that the applicants had not complied with certain directions, which was a breach of the procedural requirements set out in the Native Title Act. Despite the applicants' arguments about the potential impact on their native title rights, the court held that procedural compliance was a critical aspect of these expedited proceedings. Given the non-compliance, the court exercised its discretion to dismiss the objection applications. The court issued a springing order that would automatically dismiss the objections if the applicants did not comply with the court's directions within a specified timeframe.

The final orders of the court dismissed the objection applications on the grounds of non-compliance with the court's directions. The dismissal was contingent upon the applicants failing to comply with further directions within the set timeframe. The court's decision underscored the importance of procedural compliance in expedited proceedings related to native title and exploration activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established