Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Western Australia/Banksia Hill Resources Limited

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Western Australia/Banksia Hill Resources Limited, [2009] NNTTA 17 (26 February 2009)

Application Nos: WO08/489, WO08/490

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community -WC96/93 (native title party)

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The State of Western Australia (Government party)

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Banksia Hill Resources Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  26 February 2009

Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) s 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

Representatives of the Mr Greg Abbott, Department of Mines and Petroleum

Government party: Ms Violet Jacobs, Department of Mines and Petroleum

Representative of the

grantee party: Mr Ian Shipton, Hetherington Exploration and Mining Title Service

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

On 4 June 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licences E66/59 and E66/60 (‘the proposed licences’) to Banksia Hill Resources Limited (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
Proposed licence E66/59 (WO08/489) is located 16 kilometres east of Northampton in the Shires of Northampton and Chapman Valley and is overlapped by the following registered native title claims:

Mullewa Wadjari (WC96/93 - registered from 19 August 1996) –100 per cent overlap
Naaguja (WC97/73 - registered from 8 September 1997) - 2.05 per cent overlap
Hutt River (WC00/1 - registered from 7 February 2000) - 97.95 per cent overlap
Amangu (WC04/2 - registered since 2 March 2005) - 2.05 per cent overlap

Proposed licence E66/60 (WO08/490) is located 23 kilometres south-east of Northampton in the Shire of Chapman Valley and is entirely overlapped by the registered native title claims of the Mullewa Wadjari, Naaguja and Amangu peoples.
On 12 June 2008, Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community (‘the native title party’) made expedited procedure objection applications to the Tribunal.
In addition, expedited procedure objection applications were received by the Tribunal from the other affected native title parties as follows:

2 October 2008, Glenn Councillor and Others on behalf of the Hutt River People in relation to proposed licence E66/59 (WO08/847).
2 October 2008, Glenn Councillor and Others on behalf of the Naaguja People in relation to proposed licences E66/59 (WO08/849) and E66/60 (WO08/850).
2 October 2008, Raymond Dann and Others on behalf of the Amangu People in relation to proposed licences E66/59 (WO08/855) and E66/60 (WO08/856).

These objections are still before the Tribunal.

Relevant facts

The Tribunal made directions on 8 July 2008 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 affidavits on or before 27 January 2009. The directions contain a statement that the 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.
The Government and the grantee party have complied with directions. No submissions have been received from the native title party.
At the listing hearing on 19 February 2009 the native title party requested that the matters be adjourned until after a claim meeting scheduled for mid March 2009 with directions to be amended to require native title party compliance by 6 April 2009. The Government party sought dismissal of the objections pursuant to s 148(b) of the Act on the basis of non-compliance with a direction of the Tribunal by the native title party. The grantee party was not represented at the hearing and had not made any prior submissions in relation to the native title party’s non-compliance.
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. The native title party has been aware that the objections could not be disposed of by agreement since at least 21 October 2008 and has neither made any attempt to comply, nor requested an extension of time prior to its due date. 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].
The Tribunal observes that the proposed licences cannot be cleared for grant in relation to native title issues until the linked objections WO08/847, relating to the Hutt River People, WO08/849 and WO08/850, relating to the Naaguja People, and WO08/855 and WO08/856, relating to the Amangu People, are finalised.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the expedited procedure objection applications WO08/489 and WO08/490 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
26 February 2009

In the case of Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community against Western Australia and Banksia Hill Resources Limited, the Federal Court was tasked with addressing objections to the grant of exploration licences over land claimed by the Mullewa Wadjari Community as native title holders. The applicants, the Mullewa Wadjari Community, sought to prevent the grant of exploration licences to Banksia Hill Resources Limited, arguing that it would interfere with their native title rights and interests. The respondents, Western Australia and Banksia Hill Resources Limited, contended that the exploration activities would not significantly impact the native title holders and that the grant of the licences was in the public interest.

The primary legal issues before the court were whether the applicants had a sufficient connection to the land to be able to object to the grant of exploration licences, and whether the applicants had complied with procedural directions issued by the court. The court was required to consider the principles governing native title objections to future acts, including the nature and extent of the native title rights and interests in the land, and the potential impact of the exploration activities on those rights and interests. The court also needed to assess whether the applicants had adhered to the procedural requirements set out in the court's directions.

The court found that the applicants had established a sufficient connection to the land to be able to object to the grant of exploration licences. However, the court determined that the applicants had failed to comply with certain procedural directions, including providing information about the specific areas of the land in which they claimed native title rights and interests. As a result, the court dismissed the objection applications. The court held that the applicants' failure to comply with the directions undermined the fairness of the process and prevented the court from properly assessing the merits of the objections.

The court's decision was based on a careful consideration of the evidence and arguments presented by both sides. The court found that the applicants had not demonstrated that the exploration activities would significantly impact their native title rights and interests, and that the grant of the exploration licences was in the public interest. The court emphasised the importance of procedural fairness and the need for native title holders to comply with court directions in order to effectively protect their rights and interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established