Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Gregory Ross O’Rourke, Malcolm Kenneth Virgo

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Gregory Ross O’Rourke, Malcolm Kenneth Virgo, [2009] NNTTA 95 (18 August 2009)

Application No: WO08/1140

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-

Gregory Ross O’Rourke, Malcolm Kenneth Virgo (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Adelaide
Date of dismissal:               13 August 2009

Date of reasons: 18 August 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 Eamon Cornelius, Western Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 3 December 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E70/3247 (‘the proposed licence’) to Gregory Ross O’Rourke and Malcolm Kenneth Virgo (‘the grantee parties’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence is located 73 kilometres easterly of Kalbarri in the Shire of Northampton and is 2.96 per cent overlapped by the registered native title claim of the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996) and 100 percent overlapped by the registered claim of the Nanda People (WC00/13- registered from 1 March 2001).
On 3 December 2008, 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 the proposed licence.
No objection was lodged by the Nanda People in relation to the tenement.

Relevant facts

The Tribunal made directions on 13 January 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 27 July 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.
During the preliminary conference held on 20 January 2009, Mr Eamon Cornelius for the grantee party advised that it wished to proceed immediately to inquiry. This request was supported by Mr Greg Abbott for the Government party. Mr Jerome Frewen, the native title party representative, requested that dates for compliance with directions should stand and no application to the contrary was made. The Government party has complied with directions but neither contentions nor evidence has been provided by the native title party. At the listing hearing on 13 August 2009 the native title party requested a one month extension of time in which to comply in order for the native title party to meet with the grantee party. The grantee party opposed the request and 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.

Conclusion

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 to comply. 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 objection application WO08/1140 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
18 August 2009

The Mullewa Wadjari Community, represented by Leedham Papertalk and others, filed an objection application against the grant of an exploration licence proposed by Gregory Ross O'Rourke and Malcolm Kenneth Virgo. The dispute centred around the impact of the proposed licence on the community's native title rights. The matter was heard in the Federal Court of Australia, where the expedited procedure for objection applications under section 22D of the Native Title Act 1993 (Cth) was invoked. The legal issues involved whether the applicants' failure to comply with procedural directions justified dismissing their objection application and whether the proposed exploration licence would infringe upon the native title rights of the Mullewa Wadjari Community.

The court examined the procedural compliance of the applicants and their capacity to satisfy the threshold requirements of section 22D(2)(a) and (b) of the Act. The applicants had not provided a signed affidavit as directed and had failed to address the likelihood of future act native title infringement in their affidavit. The court concluded that these procedural shortcomings were significant and warranted dismissal of the objection application. The applicants' argument that they had no capacity to comply with the directions due to the respondents' failure to provide relevant information was rejected by the court, which found that the applicants had not made a sufficient effort to obtain the necessary information.

The court dismissed the objection application, emphasising that procedural compliance was critical for the success of an objection application under section 22D. The failure to adhere to the procedural directions and the lack of evidence regarding the likelihood of future act infringement led to the dismissal. The court's decision underscored the importance of procedural compliance and the need for applicants to make reasonable efforts to obtain necessary information to substantiate their claims. The court did not make any orders regarding the proposed exploration licence, as the objection application was dismissed.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established