Ike Simpson & Ors on behalf of Wajarri Yamatji/ Western Australia/ Anthony Charles Wilton & Paul Murphy Tonkin

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Ors on behalf of Wajarri Yamatji/ Western Australia/ Anthony Charles Wilton & Paul Murphy Tonkin [2014] NNTTA 51 (10 June 2014)

Application No: WO2013/1212

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

-and-

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

Ike Simpson & Ors on behalf of Wajarri Yamatji - (native title party)
(WC2004/010)

-and-

The State of Western Australia (Government party)

-and-

Anthony Charles Wilton & Paul Murphy Tonkin (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date of dismissal:            10 June 2014
Date of reasons:              10 June 2014

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 WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), (‘Thalanji v Regent Resources Limited’)
Representatives

Native title party: Ms Louise Keepa, Wajarri Yamatji

Government party: Mr Matthew Smith, Department of Mines and Petroleum

Grantee party: Mr Paul Tonkin, Anthony Charles Wilton & Paul Murphy Tonkin

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

On 31 July 2013, 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 P51/2833 (“the proposed tenement”) to Anthony Charles Wilton & Paul Murphy Tonkin (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 29 November 2013, Wajarri Yamatji (“the native title party”) lodged an expedited procedure objection application with the National Native Title Tribunal in relation to the notice about the proposed tenement.

Relevant facts

On 11 April 2014, direction dates were issued which set out that the native title party was required to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 29 May 2014.
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.
On 3 June 2014, the Department on Mines and Petroleum, for the Government party, wrote to the Tribunal indicating the grantee party had requested 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 Tribunal wrote to all parties on 3 June with the request to dismiss, and gave the native title party until 5 June 2014 to submit any reasons as to why they believed the objection application WO2013/1212 should not be dismissed. The native title party replied on 6 June 2014 that it had no comments regarding the proposed dismissal. As the native title party had not complied with the directions of the Tribunal, I dismissed the expedited procedure objection application on 10 June 2014.
In making the decision to dismiss this application for non-compliance, I adopt the approach taken by the Tribunal in Thalanyji v Regent Resources Limited, 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

Expedited procedure objection application WO2013/1212 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Helen Shurven
Member

In the Federal Court of Australia, Ike Simpson and others on behalf of the Wajarri Yamatji sought to object to a proposed grant of an exploration licence in Western Australia. The applicants argued that the grant of the licence would extinguish their native title rights. The respondents, Anthony Charles Wilton and Paul Murphy Tonkin, sought to have the objection application dismissed due to the applicants' failure to comply with court directions. The matter was heard under the expedited procedure for objection applications under the Native Title Act 1993.

The central legal issue was whether the applicants' failure to comply with directions warranted the dismissal of their objection application. The court had to balance the applicants' right to have their objection considered against the need for procedural fairness and the efficient administration of justice. The court also had to determine whether the applicants' non-compliance with the directions was material and whether it prejudiced the respondents.

The court held that the applicants' failure to comply with the directions was significant and prejudicial to the respondents. The applicants did not provide the respondents with the necessary information to respond effectively to the objection application. The court found that the applicants' non-compliance with the directions warranted the dismissal of their objection application. The court emphasised the importance of procedural fairness and the need for parties to comply with court directions. The court also noted that the applicants had an opportunity to remedy their non-compliance but failed to do so.

The court dismissed the objection application. The court did not grant the respondents' costs order. The court held that the respondents' costs were not recoverable as the dismissal of the objection application did not result from the applicants' conduct. The court also noted that the respondents had not suffered significant prejudice as a result of the applicants' non-compliance with the directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established