Leedham Papertalk on behalf of the Mullewa Wadjari Community/Western Australia/ Duketon Consolidated Ltd

[2008] NNTTA 91

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk on behalf of the Mullewa Wadjari Community/Western Australia/ Duketon Consolidated Ltd, [2008] NNTTA 91 (16 July 2008)

Application No:  WO07/1228

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

-and-

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

Leedham Papertalk on behalf of the Mullewa Wadjari Community (WC96/93) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Duketon Consolidated Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:                  11 July 2008
Date of reasons:  16 July 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 Act1993 (Cth) ss 29, 148(b)

Cases:Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/ Geotech International Pty Ltd, NNTT WO07/828 [2008] NNTTA 41 (4 April 2008), Hon C J Sumner

Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829 [2008] NNTTA 46 (11 April 2008), John Sosso

Representative of the        

native title party:                 Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the        

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

Representative of the        

grantee party:  Mr Michael Giles, South Boulder Mines Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 24 October 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E66/53 (‘the proposed licence’) to Duketon Consolidated Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. The proposed licence is located six kilometres north-westerly of Northampton in the Shire of Northampton and is entirely overlapped by the registered native title claim of the Hutt River People (WC00/1 – registered from 7 July 2000) and 97.56 per cent overlapped by the registered native title claim of the Mullewa Wadjari Community (WC96/93 - registered from 19 August 1996).

3. On 26 October 2007 Leedham Papertalk on behalf of the Mullewa Wadjari Community – WC96/93, registered from 19 August 1996 (‘the Mullewa Wadjari native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence (designated WO07/1228).  On 16 January 2008 the Hutt River People also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (designated WO08/16), and that objection was withdrawn by agreement on 23 June 2008.

Relevant facts

1. In relation to WO07/1228, the Tribunal made directions on 24 November 2007 for 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 23 June 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. The native title party has failed to comply by the due date.

Inquiry and findings

1. On 18 March 2008 the grantee party requested that the objection proceed to inquiry on the basis that it was negotiating an agreement with the Hutt River People in relation to the proposed licence. The Government party supported this request and the matter was scheduled for a Listing Hearing on 10 July 2008. On that date and despite written notice of the date for the hearing on 27 June 2008, the representatives for both the native title party and the grantee party were unavailable. The Government party requested that the objection be dismissed pursuant to s 148(b) of the Act for failure by the Mullewa Wadjari native title party to comply with a direction of the Tribunal. The grantee party representative subsequently confirmed that there had been no further negotiations with the Mullewa Wadjari native title party in relation to this matter.

2. I find that the Mullewa Wadjari native title party has failed to comply with a direction of the Tribunal and has provided no explanation for its failure.  In making the decision to dismiss this application for non-compliance I adopt the Tribunal’s findings in Robert Flanagan on behalf of the Mullewa Wadjari Community/Western Australia/Geotech International Pty Ltd, NNTT WO07/828, [2008] NNTTA 41 (4 April 2008) at [9]-[10] and Robert Flanagan (Mullewa Wadjari Community)/Western Australia/Buddadoo Metals Pty Ltd, NNTT WO07/829, [2008] NNTTA 46 (11 April 2008), John Sosso at [10]-[11].

Decision

1. The native title party has failed to comply with a direction by the Tribunal and accordingly the objection application WO07/1228 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
16 July 2008