John Graham & Ors on behalf of Ngadju/ Western Australia/ Baracus Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

John Graham & Ors on behalf of Ngadju/ Western Australia/ Baracus Pty Ltd [2013] NNTTA 144 (2 October 2013)

Application No: WO2013/0216

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

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

John Graham & Ors on behalf of Ngadju – (WC1999/002) (native title party)

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The State of Western Australia (Government party)

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Baracus Pty Ltd (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 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), 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 Matthew Clohessy, Emerald Tenement Services

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

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 exploration licence E15/1332 (“the proposed tenement”) to Baracus Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 25 February 2013, John Graham & Ors on behalf of Ngadju (“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 7 August 2013, the grantee party advised at a status conference that an agreement was not imminent between parties. Directions dates were set for objection application WO2013/0216 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.
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 24 September 2013, 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 native title party were given until 27 September 2013 to submit any reasons as to why they believed the objection application WO2013/0216 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 application on 1 October 2013 in accordance with the submissions of the Government party.
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

Expedited procedure objection application WO2013/0216 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Raelene Webb QC
President
2 October 2013

In the case of John Graham & Ors on behalf of Ngadju/ Western Australia/ Baracus Pty Ltd, the Federal Court was tasked with considering the objection by the respondents to a proposed grant of an exploration licence over land claimed by the applicants to be subject to native title. The dispute centred on whether the applicants' objection to the proposed grant of the exploration licence under the Native Title Act 1993 should proceed under the expedited procedure. The respondents, including the State of Western Australia and Baracus Pty Ltd, argued that the applicants had failed to comply with procedural directions and, as a result, their objection application should be dismissed.

The legal issues that the court had to address were whether the applicants' failure to comply with procedural directions warranted the dismissal of their objection application and whether the court should proceed under the expedited procedure as requested by the applicants. The court had to balance the need for procedural compliance with the urgency and importance of the applicants' native title claim.

The court found that the applicants had not complied with procedural directions and, therefore, their objection application was dismissed. The court emphasised the importance of adhering to procedural requirements and noted that the applicants' failure to comply with directions was significant. The court also considered that the respondents had not opposed the application to proceed under the expedited procedure, and thus, there were no grounds to prevent the court from doing so. However, the dismissal of the objection application meant that the expedited procedure could not be utilised.

The court dismissed the objection application due to the applicants' failure to comply with procedural directions. The court did not proceed to consider the merits of the objection or the proposed grant of the exploration licence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established