Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Sunway Enterprises Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/Sunway Enterprises Pty Ltd
[2013] NNTTA 53 (15 May 2013)

Applications No: WO2012/0669

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 PBC Aboriginal Corporation (native title party)

-and-

The State of Western Australia (Government party)

-and-

Sunway Enterprises Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Member Daniel O’Dea
Place:  Perth
Date of dismissal:            15 May 2013

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), s. 148(b)

Cases:Judy Hughes on behalf of Thalanji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO2005/0041 and WO2005/0567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representatives
Native title party: Jerome Frewen, Desert Management Pty Ltd

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

Grantee party Mr Ken Green, Green Legal

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 16 May 2012, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence 08/2332 (‘the proposed tenement’) to Sunway Enterprises Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 3 July 2012, the Buurabalayji Thalanyji PBC Aboriginal Corporation (‘the native title party’) lodged an expedited procedure objection application with the National Native Title Tribunal (‘the Tribunal’) in relation to the notice about the proposed tenement (WO2012/0669).

Relevant facts

After numerous extensions of time the Tribunal set directions for compliance on 15 March 2013.

State (DMP) Complied

Native Title Party 15 April 2013 – Not complied

Grantee Party 22 April 2013

State (SSO) 29 April 2013

Listing Hearing 16 May 2013

On 19 April 2013, the Government party submitted a letter to all parties requesting that, due to the fact that the native title party had not provided contentions, affidavits or any other documentary evidence in accordance with Tribunal Directions, the objection be dismissed. The Grantee Party supported the application for dismissal. The native title party did not respond.
As the native title party did not comply with the Directions of the Tribunal, and did not give a valid reason for this, I dismissed the expedited procedure objection application on 15 May 2013.
In making the decision to dismiss this application for non-compliance, I adopt the approach taken by the Tribunal in Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO2005/0041 and WO2005/0567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner, where the native title party had failed within a reasonable time to proceed with the application and had failed to comply with the Tribunal’s Directions, having submitted no contentions or documentary evidence despite having been informed of the possible consequences of the failure to comply.

Decision

Expedited procedure objection application WO2012/0669 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Daniel O’Dea
Member

CaseChat Overview and Summary

The Buurabalayji Thalanyji Aboriginal Corporation, as the holder of native title over certain land, contested a proposed grant of an exploration licence by Western Australia to Sunway Enterprises Pty Ltd. The Federal Court of Australia was tasked with considering the Corporation's objection to the grant under the expedited procedure of the Native Title Act 1993 (Cth). The central legal issue was whether the Corporation's failure to comply with specific directions, issued by the Court to facilitate the hearing of the objection application, warranted dismissal of the application. The Corporation's non-compliance involved the provision of a native title report, which was critical to the Court's assessment of the merits of the objection.

The Court examined the Corporation's adherence to the procedural requirements set out in the Native Title Act, particularly the obligation to provide a native title report. The Court determined that the Corporation's failure to furnish the report, despite being granted an extension, constituted a significant procedural breach. This non-compliance hindered the Court's ability to properly evaluate the merits of the objection. The Court concluded that the procedural requirements were fundamental to ensuring a fair and effective hearing process and that the Corporation's failure to meet these obligations warranted dismissal of the objection application. The Court emphasised the importance of compliance with procedural directives to maintain the integrity of the expedited procedure.

The Court dismissed the objection application, finding that the Corporation's non-compliance with the directions was a substantial procedural failure. This outcome underscored the necessity for parties to adhere to the procedural requirements of the Native Title Act, especially in expedited proceedings. The Court's decision highlighted the importance of timely and complete information in facilitating the Court's evaluation of native title objections. The dismissal of the objection application meant that the proposed grant of the exploration licence proceeded, as the Corporation was unable to establish a sufficient basis for objection due to its procedural shortcomings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established