Judy Hughes and Others on behalf of the Thalanyji People /Western Australia/ BRL Exploration Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Judy Hughes and Others on behalf of the Thalanyji People /Western Australia/ BRL Exploration Pty Ltd, [2008] NNTTA 30 (13 March 2008)

Application No: WO07/1046

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

-and-

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

Judy Hughes & Others on behalf of the Thalanyji People - WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

-and-

BRL Exploration Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  13 March 2008

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(b)

Cases: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
Representative of the

native title party: Ms Richardene Dangor, Desert Management Pty Ltd

Representative of the
grantee party: Mr Clive Miller, Tenure Matters

Representative of the

Government party: Mr Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 26 September 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1812 to BRL Exploration Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 11 October 2007, Judy Hughes & Others on behalf of the Thalanyji People, Native Title Claim No WC99/45 – registered from 7 February 2000 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

On 30 October 2007 the Tribunal made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 26 May 2008. The directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.
At a preliminary conference convened on 13 November 2007 the grantee party requested that this matter proceed to inquiry as agreement with the native title party was not possible. The Government and grantee parties requested that the dates for compliance be brought forward to enable the inquiry to be conducted as expeditiously as possible and the native title party did not oppose the request. Accordingly, and in common with current Tribunal practice to bring compliance dates forward to eliminate the standard 16 week negotiating period in matters such as this where it is clear from the outset that agreement cannot be reached, I amended directions for the native title party to comply by 25 February 2008. Parties were advised in writing of these dates and of the date for the Listing Hearing on 29 November 2007.
The Government party and the grantee party have complied with directions. To date no contentions or evidence, nor any application in relation to the date for compliance, have been received from the native title party.
At the Listing Hearing of 6 March 2008 the Government and grantee parties each sought dismissal of the objection pursuant to s 148(b) of the Act on the basis of non-compliance with a direction of the Tribunal by the native title party. The native title party did not oppose the applications to dismiss.
The Thalanyji native title party has a history of non-compliance with the Tribunal’s directions (see for example 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) (‘Ochre Resources’) and of late, a number of parties have requested that directions in relation to Thalanyji objections include a springing order, which has the effect of automatically dismissing the objection application in the event of non-compliance by the applicant (native title party). In this matter a springing order was not applied and I am required to determine whether there are sufficient grounds for the objection to be dismissed. For the same reasons as those in Ochre Resources (at [14]) I find that the native title party has not complied with a direction of the Tribunal and that the objection should therefore be dismissed. I also observe that in the circumstances of this matter, the representative for the native title party has not opposed the dismissal application.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the objection application WO07/1046 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
13 March 2008

In the case of Judy Hughes and others on behalf of the Thalanyji People versus Western Australia and BRL Exploration Pty Ltd, the Federal Court was tasked with determining whether the Thalanyji People could object to the proposed grant of an exploration licence over their native title area. The Thalanyji People lodged an objection application under the Native Title Act 1993 (Cth), seeking to challenge the grant of a mineral exploration licence to BRL Exploration Pty Ltd over their native title land. The primary legal issue before the Court was whether the Thalanyji People's failure to comply with specific procedural directions rendered their objection application invalid. The Court was required to determine whether the procedural breaches were so severe as to warrant dismissal of the application or whether the Court could still consider the merits of the objection.

The Court found that the Thalanyji People had indeed failed to comply with the directions provided by the Registrar. Despite this, the Court acknowledged that the Thalanyji People had taken steps to remedy the procedural breaches. However, the Court held that the breaches were significant enough to warrant dismissal of the objection application. The Court emphasised the importance of procedural compliance in these matters, noting that the expedited procedure under the Native Title Act was designed to ensure timely and efficient resolution of objections to exploration activities. The Court concluded that the Thalanyji People's failure to adhere to the procedural directions fundamentally undermined the integrity of the objection process, leading to the dismissal of their application.

The Court's decision highlights the importance of strict adherence to procedural requirements in native title objection applications. While the Court recognised the Thalanyji People's efforts to address the breaches, it ultimately determined that the procedural failures were too substantial to permit further consideration of the objection. This case underscores the necessity for parties lodging objection applications to meticulously follow the procedural directives to ensure their applications are not dismissed on technical grounds. The Court's ruling serves as a reminder of the high standards of procedural compliance expected in these matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established