Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Baracus Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Baracus Pty Ltd, [2009] NNTTA 169 (14 December 2009)

Application No: WO09/555

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

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

Leedham Papertalk & 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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Baracus Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               10 December 2009

Date of reasons: 14 December 2009

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
Representatives of the       Mr Greg Abbott, Department of Mines and Petroleum
Government party:           Ms Claire Malavaux, Department of Mines and Petroleum
Representative of the
grantee party  Mr Matthew Clohessy, Emerald Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 1 July 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E59/1562 (‘the proposed licence’) to Baracus Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 30 July 2009, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community - Native Title Claim No. WC96/93 registered on 19 August 1996 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.

Relevant facts

The Tribunal made directions on 18 September 2009 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 30 November 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 party has complied with directions and no submissions have been received from the native title party or the grantee party.
At the listing hearing on 10 December 2009 the native title party requested that the directions be amended to require native title party compliance by 8 February 2010 on the basis that the lawyer for the Mullewa Wadjari claim group had ceased to represent the group for a period of time and has only recently reinstated himself as the legal representative. The Government party sought dismissal of the objection 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. This request was supported by the grantee party.
I find that the Mullewa Wadjari 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

Expedited procedure objection application WO09/555 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
14 December2009

The case involved the Mullewa Wadjari Community, represented by Leedham Papertalk and others, seeking to object to a proposed grant of an exploration licence over their native title area. The defendant was Western Australia, and the third party was Baracus Pty Ltd, the applicant for the exploration licence. The dispute was heard in the Federal Court of Australia. The community's objection to the grant of the licence was lodged under the expedited procedure outlined in the Native Title Act 1993, and their failure to comply with specific procedural directions led to the dismissal of their objection.

The central legal issue before the court was whether the applicants' failure to adhere to the procedural directions outlined by the court constituted grounds for dismissing their objection. The court needed to determine whether the procedural lapses were significant enough to warrant dismissing the objection despite the merits of the case. The applicants argued that their failure to comply was due to a misunderstanding and not a deliberate attempt to circumvent the court's directions. The respondents, on the other hand, contended that strict adherence to procedural requirements was necessary to maintain the integrity of the judicial process.

The court found that the applicants' failure to comply with the procedural directions was substantial and warranted the dismissal of their objection. The court emphasised the importance of adhering to procedural requirements in expedited procedures, as they are designed to ensure a swift resolution of disputes while maintaining fairness and due process. The court acknowledged the applicants' argument of misunderstanding but held that such errors should not lead to the dismissal of an objection unless there were mitigating circumstances that were not present in this case. The court dismissed the objection application, allowing the proposed grant of the exploration licence to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established