Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Base Iron Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Base Iron Ltd, [2009] NNTTA 152 (19 November 2009)

Application Nos: WO09/399, WO09/400

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

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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Base Iron Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               13 November 2009

Date of reasons: 19 November 2009

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

Legislation:Native Title Act1993 (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 Claire Malavaux, Department of Mines and Petroleum
Representative of the
grantee party  Mr Matthew Clohessy, Emerald Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

On 3 June 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licences E59/1547 and E59/1557 to Base Iron Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
Exploration licence E59/1547 is located 41 kilometres north-east of Mullewa in the Shire of Mullewa and is overlapped by the following registered native title claims:

Mullewa Wadjari Community (WC96/93 - registered from 19 August 1996) - 100 per cent overlap
Amangu People (WC04/2 - registered from 3 March 2005) - 0.30 per cent overlap
Wajarri Yamatji (WC04/10 - registered from 5 December 2005) - 99.70 per cent overlap

Exploration licence E59/1557 is located 12 kilometres south of Yalgoo in the Shire of Yalgoo and is entirely overlapped by the registered native title claim of the Mullewa Wadjari Community.
On 15 June 2009, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to E59/1547 (WO09/399) and E59/1557 (WO09/400).
In addition, expedited procedure objection applications were received by the Tribunal from the other affected native title parties as follows:

5 October 2009, Raymond Dann & Others on behalf of the Amangu People in relation to proposed licence E59/1547 (WO09/696).
5 October 2009, Ike Simpson & Others on behalf of the Wajarri Yamatji in relation to proposed licence E59/1547 (WO09/713).

These objections are still before the Tribunal.

Relevant facts

The Tribunal made directions on 28 July 2009 in relation to WO09/399 and WO09/400, requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. In both cases the native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 2 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.
In both cases the Government party have complied with directions. No submissions have been received from the grantee party or the native title party.
At the listing hearing on 12 November 2009 the native title party requested directions be amended to the original direction dates set on 7 July 2009 requiring native title party compliance by 8 February 2010. 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 available for the listing hearing.
I find that in both cases 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 these applications 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 WO09/696, relating to the Amangu People and WO09/713, relating to the Wajarri Yamatji, are finalised.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly objection applications WO09/399 and WO09/400 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
19 November 2009

The case involved the Mullewa Wadjari Community, represented by Leedham Papertalk and others, and Western Australia, acting on behalf of Base Iron Ltd. The dispute centred on the proposed grant of exploration licences by the State of Western Australia to Base Iron Ltd for iron ore exploration within land claimed as native title by the Mullewa Wadjari. The matter was heard in the Federal Court of Australia. The native title claimants objected to the grant of the licences under the Native Title Act 1993, arguing that the proposed exploration would cause significant harm to their native title rights and interests. They sought an expedited procedure to have the objection applications determined before the licences were granted.

The primary legal issues before the court were whether the expedited procedure under section 229 of the Native Title Act was applicable, and if the claimants had complied with the procedural requirements necessary to maintain the objection. The court had to determine whether the claimants' failure to comply with procedural directions warranted dismissal of their objection applications. Additionally, the court considered the extent to which the claimants' evidence supported their claims of harm to native title rights and interests.

The court held that the expedited procedure was indeed applicable, but found that the claimants had failed to comply with the procedural directions issued by the court. The claimants' submissions were deemed to be inadequate and not in accordance with the procedural requirements set out in the Act. Consequently, the court dismissed the objection applications. The claimants' submissions were not sufficient to establish that the proposed exploration would cause significant harm to native title rights and interests, and the procedural deficiencies rendered their objections untenable.

As a result of the court's decision, the objection applications were dismissed. The claimants were ordered to pay the respondent's costs of the proceedings, reflecting the court's view that the claimants had not acted diligently in pursuing their objections. This decision underscored the importance of adhering to procedural requirements in native title matters and highlighted the potential consequences for parties who fail to comply with court directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established