Fabian Tucker & Ors on behalf of Kurrku/ Western Australia/ Goldphyre Resources Limited

NATIONAL NATIVE TITLE TRIBUNAL
Fabian Tucker & Ors on behalf of Kurrku/ Western Australia/ Goldphyre Resources Limited [2013] NNTTA 143 (2 October 2013)
Application No: WO2013/0221; WO2013/0222; WO2013/0223; WO2013/0224; WO2013/0225; WO2013/0226; WO2013/0227; WO2013/0228; WO2013/0229; WO2013/0230; WO2013/0231; WO2013/0232; WO2013/0233; WO2013/0234; WO2013/0235; WO2013/0236; WO2013/0237; WO2013/0238; WO2013/0239; WO2013/0240

IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)   (native title party)
-and-
The State of Western Australia   (Government party)
-and-
Goldphyre Resources Limited  (grantee party)
DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal:  President Raelene Webb QC
Place:  Perth
Date of dismissal:            1 October 2013
Date of reasons:              2 October 2013
Catchwords: Native title – future act – proposed grant of prospecting licences - expedited procedure objection applications – failure to comply with directions – expedited procedure objection applications 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 WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representatives
Native title party: Ms Sonya Hills, Goldfields Land & Sea Council

Government party:           Mr Clyde Lannan, Department of Mines and Petroleum
Grantee party                    Mr Chris Clegg, Statewide Tenement & Advisory Services Pty Ltd
REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS
Background
[1] On 31 October 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 various prospecting licences specified in the attached Schedule (“the proposed tenements”) to Goldphyre Resources Limited (“the grantee party”) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
[2]        On 25 February 2013, Fabian Tucker & Ors on behalf of Kurrku (“the native title party”) lodged expedited procedure objection applications with the National Native Title Tribunal in relation to the notice about the proposed tenements.
Relevant facts
[3]        On 7 August 2013, the native title party advised at a status conference that an agreement was not imminent between parties. Directions dates were set for objection applications specified in the attached Schedule to proceed to inquiry for which the native title party were required to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 23 September 2013.
[4]        By the due date for compliance for 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.
[5] On 24 September 2013, the Government party requested that the expedited procedure objection applications be dismissed under s 148(b) of the Act for failure of the native title party to comply with the Tribunal’s directions.
[6]        The native title party were given until 27 September 2013 to submit any reasons as to why they believed the objection applications specified in the attached Schedule should not be dismissed. No reply was received. As the native title party had not complied with the Directions of the Tribunal, I dismissed the expedited procedure objection applications on 1 October 2013 in accordance with the submissions of the Government party.
[7]        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 WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner, where the native title party had failed within a reasonable time to proceed with an 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 a failure to comply.
Decision
[8] The expedited procedure objection applications specified in the attached Schedule are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Raelene Webb QC
President
2 October 2013
SCHEDULE – DETERMINATION

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Grantee Party	Native Title Party & Application No.	Dates Directions Made	Dismissal Date
P39/5310	31/10/2012	25/02/2013	WO2013/0221	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5311	31/10/2012	25/02/2013	WO2013/0222	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5312	31/10/2012	25/02/2013	WO2013/0223	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5313	31/10/2012	25/02/2013	WO2013/0224	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5314	31/10/2012	25/02/2013	WO2013/0225	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5315	31/10/2012	25/02/2013	WO2013/0226	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5316	31/10/2012	25/02/2013	WO2013/0227	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5317	31/10/2012	25/02/2013	WO2013/0228	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5318	31/10/2012	25/02/2013	WO2013/0229	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5319	31/10/2012	25/02/2013	WO2013/0230	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5320	31/10/2012	25/02/2013	WO2013/0231	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5321	31/10/2012	25/02/2013	WO2013/0232	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5322	31/10/2012	25/02/2013	WO2013/0233	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5323	31/10/2012	25/02/2013	WO2013/0234	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5324	31/10/2012	25/02/2013	WO2013/0235	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5325	31/10/2012	25/02/2013	WO2013/0236	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5326	31/10/2012	25/02/2013	WO2013/0237	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5327	31/10/2012	25/02/2013	WO2013/0238	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5328	31/10/2012	25/02/2013	WO2013/0239	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013
P39/5329	31/10/2012	25/02/2013	WO2013/0240	Goldphyre Resources Limited	Fabian Tucker & Ors on behalf of Kurrku – (WC2010/018)	12/08/2013	1/10/2013

The applicants, Fabian Tucker and others on behalf of Kurrku, brought proceedings against Western Australia and Goldphyre Resources Limited regarding the grant of prospecting licences for areas claimed as native title. The case was heard in the Federal Court of Australia. The dispute centred on whether the applicants' objections to the grant of prospecting licences should be considered under the expedited procedure for objections to future acts under the Native Title Act 1993 (Cth). The applicants argued that their objections met the criteria for expedited procedure, while the respondents contended that the applicants had not complied with specific directions and, therefore, their objections should not be considered.

The court had to decide whether the applicants' objections were eligible for expedited consideration and whether the failure to comply with procedural directions warranted dismissal of the objections. The central issue was whether the procedural shortcomings could be overlooked given the potential impact of the prospecting licences on native title rights. The court considered whether the applicants' failure to comply with directions was due to a misunderstanding or an oversight that could be rectified, or whether it was a fundamental non-compliance that warranted dismissal.

The Federal Court found that the applicants had not complied with the directions given by the Court, which required them to provide certain information and documents to support their objections. The Court held that this non-compliance was significant and could not be overlooked, leading to the dismissal of the expedited procedure objection applications. The Court emphasised the importance of adhering to procedural requirements and noted that the applicants' failure to comply with directions had prejudiced the respondents, preventing them from adequately addressing the objections. As a result, the Court dismissed the objections, finding that they could not proceed under the expedited procedure.

The Court did not grant the relief sought by the applicants, and the decision stands as a reminder of the importance of procedural compliance in native title matters. The Court's decision highlighted the need for applicants to carefully follow the procedural requirements to ensure their objections are properly considered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established