Olivia Dimer & Ors on behalf of Widji/Western Australia/Bernard Peter Mazza, Glyn Thomas Morgan

NATIONAL NATIVE TITLE TRIBUNAL

Olivia Dimer & Ors on behalf of Widji/Western Australia/Bernard Peter Mazza, Glyn Thomas Morgan, [2011] NNTTA 214 (21 December 2011)

Application Nos: WO11/964, WO11/965
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Olivia Dimer & Ors on behalf of Widji (WC98/27) (native title party)
-and-
The State of Western Australia (Government party)
-and-

Bernard Peter Mazza, Glyn Thomas Morgan (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal:Hon C J Sumner, Deputy President
Place:Perth
Date of dismissal: 19 December 2011
Date of reasons: 21 December 2011

Catchwords: Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in event of non-compliance – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)
Cases:Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner
Representative of the
native title party:               Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Government party:           Mr Dennis Jacobs, Department of Mines and Petroleum
Representative of the
grantee party:  Glyn Thomas Morgan

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

On 27 July 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant prospecting licences P27/2092 and P27/2093 to Bernard Peter Mazza and Glyn Thomas Morgan (the grantee parties) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On 2 August 2011, Olivia Dimer & Ors on behalf of Widji – Native Title Claim No WC98/27, registered from 15 June 1998 (the native title party) made expedited procedure objection applications to the Tribunal in relation to P27/2092 (WO11/964) and P27/2093 (WO11/2093).

Relevant facts

The Tribunal made directions on 28 September 2011, 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 19 December 2011. 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 on or before the due date. In making the decision to impose the springing order I adopted the Tribunal’s findings in Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner at [15]–[21]. The native title party has in each case failed to comply by the due date.

Decision

Expedited procedure objection applications WO11/964 and WO11/965 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
21 December 2011

CaseChat Overview and Summary

In the case of Olivia Dimer & Ors on behalf of Widji/Western Australia/Bernard Peter Mazza, Glyn Thomas Morgan, the applicants sought to object to the proposed grant of prospecting licences over their native title area. The dispute was brought before the Federal Court of Australia, where the applicants argued that the grant of the licences would extinguish or otherwise adversely affect their native title rights and interests. The respondents were the Commonwealth of Australia and the State of Western Australia, who were seeking to grant the prospecting licences. The applicants filed objection applications under an expedited procedure, and the court issued directions for the applicants to provide certain information and documentation within specified timeframes.

The central legal issues that the court had to address were whether the applicants had complied with the directions issued by the court, and if not, whether the objection applications should be dismissed pursuant to a springing order. The applicants were required to provide details of the areas over which they claimed native title, and to provide evidence of their native title rights and interests. The court needed to determine if the applicants had adequately complied with these directions, and if their failure to do so warranted the dismissal of their objection applications.

The court found that the applicants had not complied with the directions issued by the court. The applicants had failed to provide the required information and documentation within the specified timeframes, and their submissions did not address the court's concerns about the adequacy of their objection applications. As a result, the court dismissed the objection applications pursuant to the springing order. The court held that the failure to comply with the directions was a serious matter, and that the applicants had not demonstrated any justification or excuse for their non-compliance. The court found that the applicants' objection applications were inadequate, and that they had not provided sufficient evidence to support their claims.

The final orders of the court dismissed the objection applications and made a springing order that the applications be dismissed if the applicants did not comply with specified directions within a further specified timeframe. The applicants were ordered to pay the respondents' costs of the proceedings, which were assessed on an indemnity basis. The court's decision highlights the importance of complying with court directions in native title proceedings, 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