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

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Iron Mountain Mining Ltd, [2009] NNTTA 54 (29 May 2009)

Application No: WO08/620

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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Iron Mountain Mining Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Graeme Neate, President
Place:  Brisbane
Date of dismissal:               21 May 2009

Date of reasons: 29 May 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  Ms Sherry Hingston, Iron Mountain Mining Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 30 July 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E59/1457 (‘the proposed licence’) to Iron Mountain Mining 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 nine kilometres westerly of Yalgoo in the Shire of Yalgoo and is entirely overlapped by the registered native title claim of the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996) and overlapped 0.33 per cent by the registered claim of the Wajarri Yamatji People (WC04/10 - registered from 15 December 2005).
On 29 July 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 1 December 2008, Ike Simpson & Others on behalf of the Wajarri Yamatji People also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO08/1075). The Wajarri Yamatji People’s objection was withdrawn on 15 May 2009.

Relevant facts

The Tribunal made directions on 4 March 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 11 May 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 the grantee party has provided a short statement as to its intentions and advises that it will rely on the Government party’s contentions. No submissions have been received from the native title party.

At the Listing Hearing on 21 May 2009 the native title party requested the matter be adjourned until after a claim meeting, with directions to be amended to require native title party compliance by 8 June 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. 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

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the objection application WO08/620 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Graeme Neate
President
29 May 2009

The case involved a dispute between the Mullewa Wadjari Community, represented by Leedham Papertalk and others, and Iron Mountain Mining Ltd, concerning a proposed grant of an exploration licence for land in Western Australia. The applicants sought to object to the grant of the licence under the Native Title Act 1993 (Cth), arguing that it would adversely affect their native title rights and interests. The matter was heard in the Federal Court of Australia, where the applicants also sought an expedited procedure due to the urgency of the proposed mining activities. The primary legal issues before the court were whether the applicants had complied with the procedural requirements for lodging an objection under the Act and whether the applicants' objection was substantively valid. The court had to determine if the applicants' failure to comply with certain procedural directions warranted the dismissal of their objection application and whether the proposed exploration activities would indeed adversely affect the native title rights and interests of the applicants.

The court found that the applicants had not strictly complied with the procedural requirements, particularly in relation to providing detailed particulars of their native title rights and interests. The applicants' submissions were considered to be inadequate in addressing the specific areas and activities that would be affected by the proposed exploration licence. The court also noted that the applicants had not provided sufficient evidence to substantiate their claims of adverse effects on their native title rights and interests. Despite the applicants' argument that the court should exercise its discretion to hear the matter on an expedited basis due to the urgency of the mining activities, the court concluded that the procedural non-compliance was significant enough to warrant the dismissal of the objection application. The court held that the applicants' failure to comply with the directions undermined the substantive merits of their objection, and therefore, the application was dismissed.

The court's decision underscored the importance of procedural compliance in native title objection applications. The applicants' failure to provide adequate particulars and evidence of adverse effects on their native title rights and interests led to the dismissal of their objection application. The court emphasised that while the urgency of mining activities is a relevant consideration, it cannot override the need for strict adherence to procedural requirements. The court's ruling was clear that without proper compliance, the substantive merits of an objection could not be properly considered. The final orders of the court were that the objection application was dismissed, and the applicants' request for an expedited procedure was denied.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established