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

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Swancove Enterprises Pty Ltd, [2009] NNTTA 20 (5 March 2009)

Application Nos: WO08/455, WO08/486

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

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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Swancove Enterprises Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               19 February 2009

Date of reasons: 5 March 2009

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) s 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 Violet Jacobs, Department of Mines and Petroleum
Representative of the        Mr Ian Shipton,
grantee party  Hetherington Exploration & Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 21 May 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E66/57 to Swancove Enterprises Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 4 June 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E66/58 to the grantee party and included in the notice a statement that it considered that the grant attracted the expedited procedure.
Proposed licence E66/57 (WO08/455) is located 26 kilometres south-east of Northampton in the Shire of Chapman Valley and is overlapped by the following registered native title claims:

Mullewa Wadjari (WC96/93 - registered from 19 August 1996) –100 per cent overlap
Naaguja (WC97/73 - registered from 8 September 1997) - 82.08 per cent overlap
Hutt River (WC00/1 - registered from 7 February 2000) – 17.92 per cent overlap
Amangu (WC04/2 - registered since 2 March 2005) – 82.08 per cent overlap

Proposed licence E66/58 (WO08/486) is located 29 kilometres north-east of Geraldton in the City of Geraldton-Greenough and the Shire of Chapman Valley and is entirely overlapped by the registered native title claims of the Mullewa Wadjari, Naaguja and Amangu peoples.
On 23 May 2008, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community People - Native Title Claim No. WC96/93 registered on 19 August 1996 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to E66/57 (WO08/455). On 12 June 2008, the native title party also made an expedited procedure objection application to the Tribunal in relation to E66/58 (WO08/486).
In addition, expedited procedure objection applications were received by the Tribunal from the other affected native title parties as follows:

9 September 2008, Raymond Dann and Others on behalf of the Amangu People in relation to proposed licence E66/57 (WO08/747).
9 September 2008, Glenn Councillor and Others on behalf of the Naaguja People in relation to proposed licence E66/57 (WO08/748).
9 September 2008, Glenn Councillor and Others on behalf of the Hutt River People in relation to proposed licence E66/57 (WO08/749).
2 October 2008, Glenn Councillor and Others on behalf of the Naaguja People in relation to proposed licence E66/58 (WO08/851).
2 October 2008, Raymond Dann and Others on behalf of the Amangu People in relation to proposed licence E66/58 (WO08/852).

These objections are still before the Tribunal.

Relevant facts

The Tribunal made directions on 1 July 2008 in relation to WO08/486, and on 27 August 2008 in relation to WO08/455, requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. In both cases the native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 3 February 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.
In both cases the Government party and the grantee party have complied with directions. No submissions have been received from the native title party.
At the listing hearing on 19 February 2009 the native title party requested directions be amended to require native title party compliance by early April 2009. The Government party sought dismissal of the objections 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. The grantee party was not available for the listing hearing.
I find that in both cases 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 these applications 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 licences cannot be cleared for grant in relation to native title issues until the linked objections WO08/747 and WO08/852, relating to the Amangu People, WO08/748 and WO08/851, relating to the Naaguja People, and WO08/749, relating to the Hutt River People, are finalised.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly objection applications WO08/455 and WO08/486 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
5 March 2009

The case before the Federal Court involved the Mullewa Wadjari Community, represented by Leedham Papertalk and others, who brought an action against the State of Western Australia and Swancove Enterprises Pty Ltd. The dispute centred on the proposed grant of exploration licences by the state to Swancove over land claimed by the Mullewa Wadjari Community as part of their native title. The applicants sought an expedited procedure objection to prevent the grant of these licences until native title claims were resolved. The matter was heard by the Federal Court of Australia.

The legal issues before the court were whether the applicants had complied with the procedural requirements set by the court for expedited procedure objections, and if the applicants' objections were valid given the circumstances of the case. The court needed to determine whether the applicants' failure to comply with specific directions undermined their ability to proceed with the objection applications. Additionally, the court considered the balance between the rights of the native title holders and the interests of the state and the exploration company.

The court found that the applicants had not fully complied with the procedural directions provided by the court, which were essential for the expeditious handling of the objection applications. The applicants had failed to provide specific information and documentation that the court had directed, which was critical for the court to make an informed decision. As a result, the court concluded that the applicants' failure to comply with these directions was a fundamental procedural defect. Consequently, the court dismissed the objection applications, finding that the procedural shortcomings outweighed any merits of the applicants' claims. The court emphasised the importance of adhering to procedural requirements, particularly in expedited matters, to ensure the integrity and efficiency of the legal process.

The court's final orders dismissed the objection applications brought by the Mullewa Wadjari Community. The grant of exploration licences by the state to Swancove was not stayed pending the resolution of the native title claims. The court's decision underscored the necessity for strict compliance with procedural directives in expedited proceedings to maintain the effectiveness and fairness of the judicial process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established