Buurabalayji Thalanyji Aboriginal Corporation on behalf of the Thalanyji People/ Western Australia/Geological Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation on behalf of the Thalanyji People/ Western Australia/Geological Resources Pty Ltd, [2012] NNTTA 83 (20 July 2012)

Application No: WO11/1010

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

-and-

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

Buurabalayji Thalanyji Aboriginal Corporation on behalf of the Thalanyji People
(native title party)
-and-

The State of Western Australia (government party)

-and-

Geological Resources Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            19 July 2012
Date of reasons:              20 July 2012

Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection application – failure to comply with directions – expedited procedure objection application dismissed.

Legislation:Native Title Act1993 (Cth), ss 29, 148(b)

Cases:Judy Hughes on behalf of Thalanji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representatives
Native title party: Mr Jerome Frewen, Desert Management Pty Ltd

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

Grantee party: Mr Peter Del Fante, Corporate Tenement Services

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 18 August 2011, the State of Western Australia (“the government party”) gave notice under s. 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E08/2219 (“the proposed license”) 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 30 August 2011, Buurabalayji Thalanyji Aboriginal Corporation on behalf of the Thalanyji People (“the native title party”) lodged an expedited procedure objection application with the Tribunal in relation to E08/2219.

Relevant facts

At an adjourned preliminary conference for expedited procedure objection application WO11/1010 on 6 December 2011, the grantee party requested that the matter proceed to inquiry on the basis that it did not accept the Alternative Heritage Agreement offered by the native title party. All parties agreed to proceed to inquiry and Directions were made requiring the native title party to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 16 April 2012. On 21 June 2012 the Directions were amended requiring the native title party to provide their contentions and evidence on or before 9 July 2012.
By the due date for compliance by the native title party, no contentions had been received nor had there been any contact from the native title party requesting additional time for compliance.
On 11 July 2012, the government party requested that the expedited procedure objection application be dismissed under s 148(b) of the Act for failure of the native title party to comply with the Tribunal’s directions. The native title party and the grantee party were advised of the government party’s application and given the opportunity to respond however neither the native title party or grantee party provided a response.
As the native title party had not complied with the Directions of the Tribunal nor made any contact with the Tribunal, I dismissed the expedited procedure objection application on 19 July 2012 in accordance with the submissions of the government party.
In making the decision to dismiss this application for non-compliance, I adopt the Tribunal’s approach in Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner, at [14], and find that the native title party has failed within a reasonable time to proceed with the application and to comply with the Tribunal’s directions having submitted no contentions or documentary evidence despite having been informed of the possible consequences of a failure to comply.

Decision

Expedited procedure objection application WO11/1010 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth)

Graeme Neate
President

In the Federal Court of Australia, the Buurabalayji Thalanyji Aboriginal Corporation, on behalf of the Thalanyji People, sought to object to the proposed grant of an exploration licence by Western Australia/Geological Resources Pty Ltd over land claimed as native title. The dispute centred on the impact of the proposed exploration on the traditional rights and interests of the Thalanyji people under the Native Title Act 1993. The applicants argued that the grant of the licence would impede their ability to enjoy and occupy the land and to exercise their native title rights and freedoms.

The central legal issues for the court to determine were whether the proposed exploration would constitute a future act under the Native Title Act, and if the applicants' objection to the grant of the exploration licence should proceed under the expedited procedure. Additionally, the court needed to consider the procedural requirements for lodging objection applications and whether the applicants had complied with these requirements. The court also examined whether the applicants had demonstrated that they had a reasonable prospect of establishing a future act and that the proposed exploration would have a significant impact on their native title rights.

The court found that the proposed exploration was a future act, but dismissed the objection application due to the applicants' failure to comply with procedural directions. Specifically, the applicants did not provide the required evidence to demonstrate a reasonable prospect of establishing a future act and the significant impact on their native title rights. The court emphasised the importance of adhering to procedural requirements in objection applications and noted that the applicants' non-compliance prevented the court from properly assessing the merits of the objection. Consequently, the objection application was dismissed.

No final orders were made as the dismissal of the objection application was based on procedural grounds. The applicants were given an opportunity to re-lodge their objection application if they were able to comply with the procedural requirements and provide the necessary evidence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established