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

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Regalpoint Exploration Pty Ltd, [2009] NNTTA 82 (4 August 2009)

Application No: WO09/6

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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Regalpoint Exploration Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Adelaide
Date of dismissal:               24 July 2009

Date of reasons: 4 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 Shannon McMahon, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 14 January 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E70/3199 (‘the proposed licence’) to Regalpoint Exploration 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 119 kilometres easterly of Kalbarri in the Shire of Murchison and is 71.59 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 14 January 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 13 May 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 (WO09/294). The Wajarri Yamatji People’s objection is still before the Tribunal.

Relevant facts

The Tribunal made directions on 16 June 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 13 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 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 23 July 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 3 September 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].
The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO09/294, 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 WO09/6 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
4 August 2009

The applicants, the Mullewa Wadjari Community, sought to object to the grant of an exploration licence by Western Australia to Regalpoint Exploration Pty Ltd over land claimed as native title. The objection was lodged under an expedited procedure. The primary dispute centred on whether the applicants had complied with procedural requirements set by the court in lodging their objection. The Federal Court of Australia was tasked with determining the validity of the objection and whether it should proceed.

The court had to decide whether the applicants' objection was properly lodged and if any procedural shortcomings were sufficiently rectified. The applicants argued they had attempted to comply with the court's directions and that their objections should be considered on the merits. The respondents contended that the applicants had failed to adhere to the procedural requirements, resulting in a defective objection that should be dismissed.

In examining the procedural compliance, the court found that the applicants had not strictly followed the directions given by the court. Despite efforts to rectify these issues, the applicants' submissions did not fully address the procedural requirements. Consequently, the court held that the applicants had not properly lodged their objection and dismissed the application. The court emphasised the importance of adhering to procedural directives in such expedited proceedings.

The court dismissed the objection application and did not proceed to consider the merits of the objection. This decision underscored the necessity of strict compliance with procedural rules in native title objections under the expedited procedure.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established