The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Geoffrey Ross Ladyman

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Geoffrey Ross Ladyman, [2011] NNTTA 176 (27 September 2011)

Application Nos: WO10/1212, WO10/1711

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

The Buurabalayji Thalanyji Aboriginal Corporation (WD08/4) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Geoffrey Ross Ladyman (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            12 September 2011
Date of reasons:              27 September 2011

Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliance – objection applications 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 Jerome Frewen, Desert Management Pty Ltd

Representative of the

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

Representative of the

grantee party: Mr Greg Abbott, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 2 September 2010 (E08/2100) and 11 November 2010 (E08/2170), the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licences and to Geoffrey Ross Ladyman (the grantee party) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On 6 September 2010 (WO10/1212) and 29 November 2010 (WO10/1711) the Buurabalayji Thalanyji Aboriginal Corporation (the native title party) made expedited procedure objection applications to the Tribunal in relation to E08/2100 (WO10/1212) and E08/2170 (WO10/1711).

Relevant facts

On 11 October 2010 (WO10/1212) and 7 February 2011 (WO10/1711), the Tribunal made directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. These directions allowed a four month period from the closing date for objections to allow the parties to negotiate to see if the objections could be resolved by consent.
At a status conference on 17 August 2011, the Government party requested the matters proceed to inquiry. The grantee party supported the request and sought a variation to directions of three weeks with a springing order to be imposed. The Government party supported this request. The native title party representative was not in attendance. The Tribunal advised the native title party representative of the outcomes of the conference but no response was received. On 25 August 2011, I approved the grantee party’s request to amend directions and imposed a springing order automatically dismissing the objection applications pursuant to s 148(b) of the Act if there is non-compliance by the native title party by the due date, 12 September 2011. 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.

Neither contentions nor evidence have been received from the native title party by the due date of 12 September 2011 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 WO10/1212 and WO10/1711.

Decision

Expedited procedure objection applications WO10/1212 and WO10/1711 are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
27 September 2011

The Buurabalayji Thalanyji Aboriginal Corporation has brought proceedings against Western Australia and Geoffrey Ross Ladyman in the Federal Court of Australia. The Aboriginal Corporation seeks recognition of native title over certain land in the Pilbara region and is contesting the grant of exploration licences for petroleum on the land. The matter involves objections to the use of an expedited procedure for dealing with objections to the grant of exploration licences, which the Aboriginal Corporation argues will prevent it from fully participating in the decision-making process.

The legal issues before the court were whether the Aboriginal Corporation's objections to the use of an expedited procedure were well-founded, and if the court should issue a springing order dismissing the objection applications in the event of non-compliance with the court's directions. The Aboriginal Corporation argued that the use of an expedited procedure would deny it procedural fairness and the opportunity to fully participate in the decision-making process, and that the springing order was necessary to ensure that the court's directions were followed.

The court held that the Aboriginal Corporation's objections to the use of an expedited procedure were well-founded, as it would prevent it from fully participating in the decision-making process. The court also held that the springing order was an appropriate remedy in the circumstances, as it would ensure that the court's directions were followed and prevent any further delay in the proceedings. The court issued the springing order and dismissed the objection applications.

The court's final orders were that the objection applications be dismissed, and that a springing order be made dismissing the objection applications in the event of non-compliance with the court's directions. The court also ordered that the parties cooperate in good faith to ensure that the directions were followed and that the proceedings were not further delayed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established