Buurabalayji Thalanyji Aboriginal Corporation on behalf of the Thalanyji People/ Western Australia/Twelve Mile Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation on behalf of the Thalanyji People/ Western Australia/Twelve Mile Pty Ltd, [2012] NNTTA 130 (6 December 2012)

Application No: WO11/1417

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-

Twelve Mile Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            4 December 2012
Date of reasons:              6 December 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 Act 1993 (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 Greg Abbott, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 8 December 2011, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2213 (‘the proposed license’) to Twelve Mile Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 7 December 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 the statement in the s 29 notice about the proposed licence (WO11/1417).

Relevant facts

At the first preliminary conference for expedited procedure objection application WO11/1417 on 20 March 2012, the grantee party advised that it wished to negotiate an agreement with the native title party.
On 1 August 2012, the grantee party advised that there was difficulty with some of the terms of the agreement but would continue to negotiate but would request the matter to proceed to inquiry if a compromise could not be reached.
On 22 August 2012, the native title party advised that there would be no compromise on the terms of the agreement and the grantee party requested that the matter proceed to inquiry. On this basis, Directions were varied 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 15 October 2012.
On 16 October 2012, the Government party requested a variation to Directions which was approved 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 29 October 2012.
On 29 October 2012, the native title party had not complied with the Directions of the Tribunal nor made any contact with the Tribunal with a request for variation to Directions.
At the listing hearing on 29 November 2012, the native title party requested a variation to Direction to comply in the first week of February 2013. The Government party opposed this request and asked 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 grantee party supported the Government party’s request.
On 4 December 2012, I dismissed the expedited procedure objection application in accordance with the submissions of the Government and grantee parties.
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 WO11/1417 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth)

Graeme Neate
President

The case involved the Buurabalayji Thalanyji Aboriginal Corporation, representing the Thalanyji People, against Western Australia and Twelve Mile Pty Ltd. The dispute centred around the proposed grant of an exploration licence for a property within native title land. The Thalanyji People sought to object to the grant of the licence under the expedited procedure outlined in the Native Title Act 1993. The objection was based on the assertion that the grant of the licence would result in a future act that would impair their native title rights. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the Thalanyji People's objection application was valid, particularly in light of their failure to comply with procedural directions. The court had to determine if the failure to adhere to these directions was so severe that it rendered the objection application invalid. Additionally, the court had to consider whether the objection was properly made under the expedited procedure and if the Thalanyji People had a reasonable prospect of success on the merits of their claim.

The court found that the Thalanyji People's failure to comply with procedural directions was significant and resulted in the dismissal of their objection application. The court held that the objection application was invalid due to the procedural breaches, which undermined the fairness of the process. The court also noted that the Thalanyji People had not established a reasonable prospect of success on the merits of their claim, as they had not demonstrated a substantial connection between the proposed exploration activities and their native title rights. Consequently, the court dismissed the objection application.

The Federal Court ordered that the objection application be dismissed and that the Thalanyji People bear the costs of the proceedings. The decision underscores the importance of procedural compliance in native title objection applications and highlights the stringent requirements for establishing a reasonable prospect of success on the merits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established