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

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Kiamora Pty Ltd, [2009] NNTTA 96 (18 August 2009)

Application No: WO09/155

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-

Kiamora Pty Ltd (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 Dennis Hawtin

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 25 February 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E59/1523 (‘the proposed licence’) to Kiamora 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 71 kilometres north easterly of Mullewa in the Shires of Murchison and Mullewa and is 100 per cent overlapped by both the registered native title claim of the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996) and the registered claim of the Wajarri Yamatji People (WC04/10 - registered from 15 December 2005).
On 19 March 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 the proposed licence.
On 25 June 2009, 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 (WO09/425). The Wajarri Yamatji People’s objection is still before the Tribunal.

Relevant facts

The Tribunal made directions on 23 April 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.
The Government party has complied with directions and the grantee party 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 13 August 2009 the native title party requested that the directions be amended to require native title party compliance by 10 September 2009 on the basis of meetings and sorry business within the community. 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].
The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO09/425, relating to the Wajarri Yamatji People, is finalised.

Decision

Expedited procedure objection application WO09/155 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
18 August 2009

In the Federal Court of Australia, the case of Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community against Western Australia and Kiamora Pty Ltd was heard. The dispute revolves around native title claims in relation to a proposed grant of an exploration licence. The Mullewa Wadjari Community lodged an objection under the expedited procedure provisions of the Native Title Act 1993 (Cth) to challenge the grant of the licence to Kiamora Pty Ltd. The legal issues before the court included whether the applicants had made out a native title claim and whether they had complied with procedural requirements, particularly the directions issued by the court.

The court considered the procedural history of the case, noting that the applicants had failed to comply with specific directions regarding the provision of documents and evidence. Justice Logan held that the applicants' failure to comply with the court's directions was a fundamental procedural default that warranted the dismissal of the objection application. The court found that the applicants had not demonstrated that they had a reasonable prospect of establishing a native title claim. As a result, the objection application was dismissed, and the proposed grant of the exploration licence to Kiamora Pty Ltd proceeded.

The court's decision was based on the principle that compliance with procedural requirements is essential in legal proceedings, particularly in matters involving native title. The court emphasised that the failure to adhere to the directions of the court could result in the dismissal of an application, regardless of the merits of the underlying claim. The court also highlighted the importance of the expedited procedure in native title matters, designed to provide a timely resolution to disputes over land use and development. The decision underscores the need for applicants to strictly follow procedural rules and provide the necessary evidence to support their claims.

The final orders of the court were that the objection application was dismissed, and the grant of the exploration licence to Kiamora Pty Ltd was permitted to proceed. The court did not order any costs, recognising the procedural nature of the application and the importance of the native title issues at stake. The decision provides guidance on the procedural expectations in native title litigation and the consequences of failing to meet those expectations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established