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

In the case of Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community versus Western Australia and Swancove Enterprises Pty Ltd, the Federal Court of Australia was tasked with determining whether the Mullewa Wadjari Community had the right to object to the grant of exploration licences for land in Western Australia. The Mullewa Wadjari Community, represented by Leedham Papertalk, sought to object to the proposed exploration activities on the basis of their native title rights and interests. The respondents were the State of Western Australia and Swancove Enterprises Pty Ltd, the entity seeking the exploration licences.

The primary legal issues before the court involved the interpretation of the Native Title Act 1993 (Cth) and its provisions concerning future acts, specifically section 217, which allows for native title holders to object to proposed activities that might affect their native title rights. The court had to consider whether the Mullewa Wadjari Community's objections were valid under the Act and whether procedural requirements were properly followed. A significant point of contention was the community's failure to comply with specific directions issued by the court regarding the preparation and filing of their objection applications. The court examined whether this non-compliance justified dismissing the objections.

The court held that the Mullewa Wadjari Community's objections were valid in principle, recognising their potential to impact native title rights. However, the failure to adhere to the court's directions, including the submission of an amended objection application and the provision of necessary documents, was deemed a serious procedural breach. The court found that this non-compliance undermined the integrity of the objection process and, as a result, dismissed the objection applications. The court emphasised the importance of following procedural requirements to ensure a fair and efficient process for all parties involved.

In conclusion, the Federal Court dismissed the objection applications due to the Mullewa Wadjari Community's failure to comply with the court's directions. The court's decision underscored the necessity of adhering to procedural rules in native title matters, ensuring that the objection process remains effective and just for all parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established