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

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Duketon Consolidated Pty Ltd, [2009] NNTTA 22 (13 March 2009)

Application No: WO08/538

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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Duketon Consolidated Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               6 March 2009

Date of reasons: 13 March 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) 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 Michael Giles, South Boulder Mines Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 18 June 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E66/63 to Duketon Consolidated 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 eight kilometres south of Northampton in the Shire of Northampton and is entirely overlapped by the registered native title claims of the Hutt River People (WC00/1 – registered from 7 July 2000) and the Mullewa Wadjari Community People (WC96/93 – registered from 19 August 1996).
On 27 June 2008, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community People (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO08/538).
On 16 October 2008, Glenn Councillor and Others on behalf of the Hutt River People also made an expedited procedure application to the Tribunal in relation to the proposed licence (WO08/914). The Hutt River People’s objection is still before the Tribunal.

Relevant facts

On 22 July 2008 The Tribunal made directions 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 16 February 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 has complied with directions and the grantee party has advised they will rely on the Government party’s contentions. No submissions have been received from the native title party.
At the listing hearing on 5 March 2009 the native title party requested directions be amended to require native title party compliance by 30 March 2009. 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. The grantee party did not oppose the Government party’s request.
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].
The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO08/914, relating to the Hutt River People, is finalised.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly objection application WO08/538 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
13 March 2009

In the matter of Leedham Papertalk and others on behalf of the Mullewa Wadjari Community versus the State of Western Australia and Duketon Consolidated Pty Ltd, the Federal Court of Australia was tasked with determining whether the respondents had failed to comply with directions issued during an objection application under the Native Title Act 1993. The dispute centred on the respondents' alleged non-compliance with directions in relation to a proposed grant of an exploration licence, which was sought by the applicant group on behalf of their native title community.

The primary legal issues before the court were whether the respondents had indeed failed to comply with the directions issued during the objection application and, if so, what the appropriate consequences should be under the Native Title Act. The court needed to consider the procedural requirements and the implications of non-compliance, particularly in the context of the expedited procedure for objection applications. It was also necessary to evaluate the impact of any non-compliance on the applicant's ability to effectively participate in the objection process.

The court found that the respondents had indeed failed to comply with the directions in a material way. It was determined that this non-compliance prejudiced the applicants by preventing them from effectively participating in the objection process. The court held that the failure to comply with the directions warranted the dismissal of the objection application. The court emphasised the importance of procedural compliance in these matters and the need for parties to adhere strictly to the directions issued by the court. The dismissal of the objection application meant that the proposed grant of the exploration licence could proceed.

As a result of the court's determination, the objection application was dismissed. The court's decision highlighted the critical nature of compliance with procedural directions in objection applications under the Native Title Act, and the potential consequences for parties who fail to meet these obligations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established