Leedham Papertalk on behalf of the Mullewa Wadjari Community/Western Australia/ Swancove Enterprises Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk on behalf of the Mullewa Wadjari Community/Western Australia/ Swancove Enterprises Pty Ltd, [2008] NNTTA 110 (6 August 2008)

Application No: WO07/1306

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

-and-

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

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

-and-

The State of Western Australia (Government party)

-and-

Swancove Enterprises Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            29 July 2008
Date of reasons:              6 August 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     Ms Melissa Greer,
grantee party:                 Hetherington Exploration & Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 21 November 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E09/1478 (‘the proposed licence’) to Swancove Enterprises Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence is located 149 kilometres north of Mullewa in the Shire of Murchison and is entirely overlapped by the registered native title claim of the Wajarri Yamatji People (WC04/10 – registered from 5 December 2005) and 99.86 per cent overlapped by the registered native title claim of the Mullewa Wadjari Community (WC96/93 - registered from 19 August 1996).
On 19 November 2007 Leedham Papertalk on behalf of the Mullewa Wadjari Community (‘the Mullewa Wadjari native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence (designated WO07/1306). On 7 February 2008 the Wajarri Yamatji People also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (designated WO08/165), and that objection remains active.

Relevant facts

In relation to WO07/1306, the Tribunal made directions on 5 December 2007 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 Mullewa Wadjari native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 14 July 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. The native title party has failed to comply by the due date.

Inquiry and findings

On 25 March 2008 the grantee party requested that the objection proceed to inquiry. All parties agreed and the matter was scheduled for a Listing Hearing on 31 July 2008. However, on 15 July 2008 the Government party requested that the objection be dismissed pursuant to s 148(b) of the Act for failure by the Mullewa Wadjari native title party to comply with a direction of the Tribunal. The request followed notification that the Tribunal had not received any native title party contentions or evidence by close of business 14 July 2008. The grantee party supported the Government party’s request in writing on 17 July 2008.
I find that the Mullewa Wadjari native title party has failed to comply with a direction of the Tribunal and has provided no 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].
The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO08/165, relating to the Wajarri Yamatji People, is resolved or otherwise determined.

Decision

The native title party has failed to comply with a direction by the Tribunal and accordingly the objection application WO07/1306 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
6 August 2008

The case before the Federal Court involved Leedham Papertalk, representing the Mullewa Wadjari Community, and Swancove Enterprises Pty Ltd, with the state of Western Australia as a party of interest. The dispute centred around a proposed grant of an exploration licence for mineral exploration on land claimed by the Mullewa Wadjari Community as part of their native title rights. The community objected to the grant under the Native Title Act 1993, invoking an expedited procedure. Swancove, the applicant for the exploration licence, sought dismissal of the objection on the grounds that the community had failed to comply with procedural directions issued by the court.

The primary legal issues the court had to decide were whether the Mullewa Wadjari Community's objection was validly made under the Act and whether the community's failure to comply with procedural directions justified dismissal of the objection. The court had to balance the rights of native title holders to object to future acts that may affect their native title with the need for procedural compliance in such objections. Additionally, the court considered the implications of the community's non-compliance with the directions and whether such non-compliance warranted dismissal of the objection.

In its judgment, the court held that the objection was validly made under the Act. However, the court also found that the community's failure to comply with procedural directions was significant. Despite the merits of the objection, the court concluded that the procedural non-compliance was a substantial breach of the court's directions, which undermined the integrity of the judicial process. Consequently, the court dismissed the objection application, emphasising the importance of adhering to procedural requirements in such matters.

The court's final orders dismissed the objection application brought by the Mullewa Wadjari Community, effectively allowing Swancove Enterprises Pty Ltd's application for the grant of the exploration licence to proceed. The decision underscores the significance of procedural compliance in native title objection applications and highlights the court's role in ensuring that the legal process is respected and followed by all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established