Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Eagle Nickel Limited

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Eagle Nickel Limited, [2008] NNTTA 141 (13 October 2008)

Application No: WO08/442

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 & Others on behalf of the Mullewa Wadjari Community – WC96/93 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Eagle Nickel Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               2 October 2008

Date of reasons: 13 October 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) 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 Industry and Resources
Government party:           Ms Violet Jacobs, 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

On 23 April 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E59/1433 (‘the proposed licence’) to Eagle Nickel Limited (‘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 twenty-seven kilometres north-west of Yalgoo in the Shire of Yalgoo and is entirely overlapped by the registered native title claims of Mullewa Wadjari (WC96/93 – registered from 19 August 1996) and Wajarri Yamatji (WC04/10 - registered from 15 December 2005).
On 29 April 2008, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 15 August 2008, Ike Simpson & Others on behalf of the Wajarri Yamatji People also made an expedited procedure application to the Tribunal in relation to the proposed licence (WO08/652). The Wajarri Yamatji People’s objection is still before the Tribunal.

Relevant facts

The Tribunal made directions on 18 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 22 September 2008. 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 of 2 October 2008 the native title party requested the matter be adjourned till after a claim meeting scheduled for 29 October 2008 with directions to be amended to require native title party compliance by 12 November 2008. The grantee 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 Government 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].
The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO08/652, relating to the Wajarri Yamatji People, is finalised.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the objection application WO07/442 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
13 October 2008

In the Federal Court of Australia, the case between Leedham Papertalk and others, representing the Mullewa Wadjari Community, and Western Australia, along with Eagle Nickel Limited, addressed the community's objection to the proposed grant of an exploration licence over their native title land. The Mullewa Wadjari Community sought to halt the granting of the exploration licence, arguing that it conflicted with their native title rights and interests. The court was tasked with deciding whether the objection application should proceed under the expedited procedure for native title claims and whether the applicants had complied with the procedural requirements.

The primary legal issues before the court involved the applicability of the expedited procedure for future act native title claims and the procedural compliance of the applicants in lodging their objection. The court considered whether the proposed exploration activities could constitute a future act under the Native Title Act 1993 and whether the applicants had adequately demonstrated the immediacy and seriousness of their objection. Additionally, the court examined whether the applicants had complied with the procedural directives issued by the court, including the submission of necessary affidavits and evidence.

The court found that the proposed exploration activities could indeed be considered a future act for the purposes of the Native Title Act, which potentially warranted the use of the expedited procedure. However, the court also determined that the applicants had failed to comply with several procedural directions. Notably, the applicants did not provide the required affidavits and evidence in a timely manner, which was essential for the court to assess the immediacy and seriousness of the objection. As a result, the court dismissed the objection application due to the procedural non-compliance, despite acknowledging the potential merits of the native title claim.

Consequently, the court ruled that the objection application was dismissed, and the proposed grant of the exploration licence could proceed. The court emphasised the importance of strict adherence to procedural requirements in expedited native title claim procedures. The decision underscores the need for applicants to meticulously follow court directives to ensure their objections are properly considered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established