Mantjintjarra Ngalia #2 /Western Australia/Zephyr Mining Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Mantjintjarra Ngalia #2 /Western Australia/Zephyr Mining Pty Ltd
[2013] NNTTA 161 (28 November 2013)

Application No: WO2012/1040

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Mantjintjarra Ngalia #2 (WC2006/006) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Zephyr Mining Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date of dismissal:            25 November 2013
Date of reasons:              28 November 2013

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in the event of non-compliance – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)
Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103
Representative of the

native title party: Mr Andrew Burke, Goldfields Land and Sea Council

Representative of the

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party: Mr Stephen Argus

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 16 May 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E37/1130 to Zephyr Mining Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 14 September 2012, PT (name withheld for cultural reasons) & Ors on behalf of Mantjintjarra Ngalia #2 WC2002/006 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to E37/1130 (WO2012/1040).

Relevant facts

At the 1^st preliminary conference on 23 October 2012 all parties were looking to agreement.
At the adjourned status conference, the grantee party representative advised that the signed agreement had been forwarded to the native title party for execution.
No further progress was made toward the resolution of the objection and on 8 November 2013 the Tribunal made directions requiring the native title party to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The directions imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Native Title Act if there is non-compliance by the native title party. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit on or before 25 November 2013. In imposing the springing order I considered and adopted Deputy President Sosso’s reasons in Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103, (at [24]-[25]).
Neither contentions nor evidence have been received from the native title party by the due date 25 November 2013 and no explanation has been provided for the failure to comply with the Tribunal’s directions, despite the native title party having been informed of the possible consequences of a failure to comply. The springing order applied has resulted in the dismissal of WO2012/1040.

Decision

As the native title party has failed to comply with Directions made by the Tribunal on 8 November 2013, the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth) in accordance with the terms of the Directions.

Helen Shurven
Member
28 November 2013

The case involves Mantjintjarra Ngalia, represented by their native title representative body, and Zephyr Mining Pty Ltd. The dispute centres on the proposed grant of an exploration licence for mining activities by Zephyr, which the native title holders oppose. The Federal Court of Australia was tasked with deciding whether to dismiss the objection application due to the native title holders' failure to comply with certain directions. The court's decision was influenced by the statutory framework governing native title claims and the expedited procedure for resolving such disputes.

The legal issues before the court involved interpreting the provisions of the Native Title Act 1993 and assessing the consequences of the native title holders' non-compliance with the court's directions. The court had to determine whether the failure to comply with the directions justified dismissing the objection application and whether a springing order, which would automatically dismiss the application if the non-compliance persisted, was appropriate. The court also considered the implications of these decisions on the rights and interests of both parties.

The court found that the native title holders had indeed failed to comply with the directions issued, which included providing necessary documents and information in a timely manner. The court held that this non-compliance warranted the dismissal of the objection application. Additionally, the court determined that issuing a springing order was justified as it would ensure that the native title holders complied with the court's directions in the future. Consequently, the court dismissed the objection application, with the springing order taking effect if the non-compliance continued.

In conclusion, the court's decision was to dismiss the objection application by the native title holders due to their failure to comply with the court's directions. The court also issued a springing order, which would automatically dismiss the objection application if the non-compliance persisted. This ruling underscores the importance of adhering to court directions in native title disputes and the potential consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established