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 82 (20 July 2012)

Application No: WO11/612

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:            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 Greg Abbott, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 18 May 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 E08/2042 (“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 30 May 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 E08/2042.

Relevant facts

At an adjourned status conference for expedited procedure objection application WO11/612 on 14 March 2012, the grantee party requested that the matter proceed to inquiry on the basis that it did not accept the alternative agreement offered by the native title party. A variation to Directions was 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 23 April 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.
At the listing hearing on 3 May 2012, the native title party requested a variation to directions to allow for time to collect affidavit material at a meeting later that month. A variation to Directions was 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 11 June 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 12 June 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.
On 12 June 2012, the native title party responded to this request by seeking a variation to Directions so that submissions could be filed after a meeting to be held on 23 June 2012. A variation to Directions was 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 2 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 12 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 grantee party supported the request. The native title party did not respond to the Tribunal’s notice regarding the Government party’s request.
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 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 WO11/612 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth)

Graeme Neate
President

The Buurabalayji Thalanyji Aboriginal Corporation, representing the Thalanyji People, sought to object to a proposed grant of an exploration licence over their native title land. They filed an objection application under the expedited procedure outlined in the Native Title Act 1993 (Cth). The respondent, Twelve Mile Pty Ltd, sought to dismiss the objection application on the basis that the Corporation had failed to comply with certain directions issued by the Court. The matter was heard by the Federal Court of Australia.

The central legal issue before the court was whether the Corporation's failure to comply with specific directions mandated by the Court justified the dismissal of their objection application. The court had to consider the principles of procedural fairness and the statutory framework governing expedited procedure objection applications. Additionally, the court had to determine whether the Corporation's non-compliance was sufficiently serious to warrant the dismissal of their objection.

The court found that the Corporation had indeed failed to comply with the directions in several significant respects, including the provision of evidence and adherence to deadlines. It was determined that these failures were not minor or inadvertent but rather reflected a disregard for the Court's procedural requirements. Given the importance of adhering to procedural directives in expedited objection applications, the court concluded that the Corporation's failure to comply warranted the dismissal of their objection application. The court emphasised the need for parties to strictly follow the procedural rules to ensure the expeditious and fair resolution of native title matters.

The Federal Court dismissed the objection application, finding that the Corporation's non-compliance with the Court's directions was sufficiently serious to warrant the dismissal. This decision underscores the importance of procedural compliance in expedited objection applications and the court's commitment to upholding the integrity of the native title process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established