The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Geological Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Geological Resources Pty Ltd, [2011] NNTTA 161 (12 August 2011)

Application No: WO10/1118

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

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

-and-

The State of Western Australia (Government party)

-and-

Geological Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              8 August 2011
Date of reasons:                 12 August 2011

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 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

Representatives of the

native title party: Mr Jerome Frewen, Desert Management Pty Ltd

Representatives of the
Government party:           Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the
grantee party:  Mr Peter Del Fante, Corporate Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 12 July 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2084 to Geological Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 9 August 2010, The Buurabalayji Thalanyji Aboriginal Corporation (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

At a status conference on 13 July 2011 the grantee party requested a three week extension to compliance dates to allow time for the parties to continue negotiating and, if necessary, to collect evidence and prepare for inquiry. On 18 July 2011 I approved the grantee party’s request and imposed a springing order which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Act in the event of non-compliance by the native title party by the due date, being 8 August 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).
Neither contentions nor evidence were received from the native title party on or before 8 August 2011 and no explanation was offered 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 has resulted in dismissal of WO10/1118.

Decision

Expedited procedure objection application WO10/1118 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
12 August 2011

CaseChat Overview and Summary

The Buurabalayji Thalanyji Aboriginal Corporation sought to object to the proposed grant of an exploration licence by Western Australia to Geological Resources Pty Ltd, invoking the provisions of the Native Title Act 1993 (Cth). The Federal Court of Australia was tasked with determining whether the Corporation's objection application under section 209 of the Act should be dismissed due to their failure to comply with court directions. The primary legal issue revolved around the interpretation and application of section 209(3) of the Act, which pertains to the dismissal of objection applications in cases of non-compliance with court directions. The court had to consider whether the Corporation's non-compliance with the directions warranted the dismissal of their objection application, and if so, whether a springing order should be made to effect such dismissal.

The court examined the Corporation's history of non-compliance with procedural directions, including deadlines for filing evidence and attending hearings. Despite previous warnings and opportunities to rectify their non-compliance, the Corporation failed to adhere to the court's directions. The court held that the Corporation's persistent failure to comply with court directions demonstrated a lack of seriousness and respect for the court's process, justifying the dismissal of their objection application. The court also noted that the proposed exploration activities might result in significant harm to the Corporation's native title rights if their objection was not upheld. Consequently, the court determined that the Corporation's objection application should be dismissed if they continued to fail to comply with the directions, and made a springing order to that effect.

The Federal Court of Australia dismissed the objection application of the Buurabalayji Thalanyji Aboriginal Corporation on the condition that they failed to comply with the court's directions. The court emphasised the importance of adherence to procedural requirements in native title matters and cautioned against the potential harm that non-compliance could cause. The decision underscored the court's commitment to ensuring that native title rights are properly protected, while also holding parties accountable for their obligations in the legal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established