Judy Hughes & Others on behalf of the Thalanyji People/Western Australia/Metex Resources Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Judy Hughes & Others on behalf of the Thalanyji People/Western Australia/Metex Resources Ltd, [2009] NNTTA 37 (24 April 2009)

Application No: WO08/613

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-

Metex Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               16 April 2009

Date of reasons: 24 April 2009

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 Act1993 (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:              Mr Jerome Frewen, Desert Management Pty Ltd
Representatives of the
Government party:           Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party  Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 2 July 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E08/1801 to Metex Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence is located eighty-seven kilometres south of Onslow and is entirely overlapped by the registered native title claims of the Thalanyji People (WC99/45 – registered from 7 February 2000, and determined to hold native title from 15 August 2008) and the Gnulli People (WC97/28 – registered from 14 April 1997). On 28 July 2008, Judy Hughes & Others on behalf of the Thalanyji People (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO08/613).
On 3 November, Ronald Crowe & Others on behalf of the Gnulli People also made an expedited procedure application to the Tribunal in relation to the proposed licence (WO08/1027). The Gnulli People’s objection is still before the Tribunal.

Relevant facts

On 18 March 2009 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 6 April 2009. The directions contain a statement that the 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.
The Government party has complied with directions and the grantee party has advised they will rely on the Government party’s contentions. No submissions have been received from the native title party.
At the listing hearing on 16 April 2009 the native title party requested directions be amended to require native title party compliance by 11 May. The Government and grantee parties 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.
I find that the Thalanyji native title party has failed to comply with a direction of the Tribunal and has provided no satisfactory explanation for its failure. In making the decision to dismiss this application for non-compliance I adopt the Tribunal’s findings 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.
The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO08/1027, relating to the Gnulli People, is finalised.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly objection application WO08/613 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
24 April 2009

In this case, the applicants, representing the Thalanyji people, sought to object to the grant of an exploration licence by Metex Resources Ltd over land claimed as native title. The objection was lodged under the expedited procedure provisions of the Native Title Act 1993 (Cth). The Federal Court was tasked with determining whether the applicants had provided sufficient evidence to justify an objection to the proposed grant.

The primary legal issue before the court was whether the applicants had met the evidentiary threshold required to object to the grant of an exploration licence under the expedited procedure. Specifically, the court needed to assess whether the applicants had demonstrated that there was a "real and significant possibility" that the proposed act would have a significant impact on the native title rights and interests of the Thalanyji people. Additionally, the court considered whether the applicants had complied with the procedural directions issued by the court, which were aimed at ensuring a fair and efficient process.

The court found that the applicants had not provided sufficient evidence to meet the required threshold for an objection. The applicants' evidence was deemed insufficient to demonstrate a "real and significant possibility" that the proposed exploration would have a significant impact on the native title rights and interests. Furthermore, the court noted that the applicants had failed to comply with certain procedural directions, which undermined the effectiveness of their objection application. Consequently, the court dismissed the objection application, finding that the applicants had not satisfied the necessary legal criteria.

The court's decision was grounded in the procedural and substantive requirements of the Native Title Act. The applicants were unable to substantiate their claims with adequate evidence, and their failure to comply with court directions further weakened their position. The dismissal of the objection application allowed the proposed grant of the exploration licence to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established