Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Southern Cross Goldfields Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Southern Cross Goldfields Ltd, [2009] NNTTA 126 (9 October 2009)

Application No: WO09/183

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)

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Southern Cross Goldfields Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               8 October 2009

Date of reasons: 9 October 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 Marcus Walter, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 25 March 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E70/3518 (‘the proposed licence’) to Southern Cross Goldfields 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 14 kilometres easterly of Geraldton in the City of Geraldton and Shire of Chapman Valley and is entirely overlapped by the registered native title claims of the Mullewa Wadjari Community (WC96/63 – registered from 19 August 1996), the Naaguja People (WC97/73 - registered from 8 September 1997), and the Amangu people (WC04/2 – registered from 3 March 2005).
On 26 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 24 July 2009 and 27 July 2009 respectively, Mr Glen Derrick & Others on behalf of the Naaguja People (WO09/522) and Raymond Dann & Others on behalf of the Amangu People (WO09/521) also made expedited procedure objection applications to the Tribunal in relation to the proposed licence. Both objections are still before the Tribunal.

Relevant facts

The Tribunal made directions on 7 July 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 24 August 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 advised they will rely on the Government party’s contentions. No submissions have been received from the native title party.

At the listing hearing on 8 October 2009 the native title party requested that the directions be amended to require native title party compliance by either 19 November or 3 December 2009 on the basis that the lawyer for the Mullewa Wadjari claim group is no longer representing them, and the group is in the process of finding alternative legal representation. 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 objections WO09/521 and WO09/522, relating to the Amangu and Naaguja Peoples, are finalised.

Decision

Expedited procedure objection application WO09/183 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
9 October 2009

In the matter of Leedham Papertalk and others on behalf of the Mullewa Wadjari Community, the applicants sought an expedited procedure objection against the grant of an exploration licence by the Southern Cross Goldfields Ltd over land claimed by the Mullewa Wadjari Community in Western Australia. The applicants, representatives of the indigenous community, raised concerns about the potential impact of the exploration activities on their native title rights and interests. The case was heard in the Federal Court of Australia, where the applicants argued that the proposed exploration activities would irreversibly harm their cultural heritage and traditional lands.

The primary legal issue before the court was whether the applicants' objection to the grant of the exploration licence should be dismissed due to their failure to comply with specific procedural directions issued by the court. The applicants had been required to provide detailed evidence of the potential impacts of the exploration activities on their native title rights and interests, but they failed to meet these obligations. The court needed to determine whether this non-compliance warranted the dismissal of the objection application and the grant of the exploration licence.

The court found that the applicants' failure to comply with the procedural directions was significant and had prejudiced the respondents in preparing their case. Despite the applicants' submissions regarding the potential impacts of the exploration activities, the court concluded that the procedural non-compliance was a critical factor in the decision. The court held that the applicants had not demonstrated a reasonable excuse for their failure to comply with the directions, and as a result, the objection application was dismissed. Consequently, the grant of the exploration licence proceeded without further objection from the applicants.

No further orders were made by the court, as the primary issue of procedural compliance had been resolved in favour of the respondents. The dismissal of the objection application meant that the exploration activities could proceed, subject to any other legal requirements or approvals necessary under Australian law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established