Leedham Papertalk & Others on behalf Mullewa Wadjari v Deflector Mining Ltd and Another

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf Mullewa Wadjari v Deflector Mining Ltd and Another [2016] NNTTA 60 (23 December 2016)

Application No: WO2016/0165
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection application

Leedham Papertalk & Others on behalf
Mullewa Wadjari (WC1996/093) (native title party)

-and-
The State of Western Australia (Government party)
-and-

Deflector Mining Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal: Ms H Shurven, Member

Place:Perth
Date of dismissal:              23 December 2016
Date of reasons:                23 December 2016
Catchwords:   Native title – future act – proposed grant of exploration licence – expedited procedure objection application – role of Tribunal in expedited procedure objection applications – failure to comply with directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)
Cases:Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Western Australia v Ben Ward & Ors on behalf of the Miriuwung Gajerrong peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd [1996] FCA 993; 70 FCR 265 (‘WA v Ward’)

Representative of the

native title party:              Mr Leedham Papertalk
Representative of the
Government party:            Mr Michal McMahon, Department of Mines and Petroleum
Representative of the
grantee party:  Ms Janet Procak, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 2 December 2015, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E59/2156 to Deflector Mining Ltd (Deflector). The area of the proposed licence wholly overlaps with the Mullewa Wadjari native title claim WC1996/093. The State included an expedited procedure statement in the public advertisement of the licence, which asserts the State can make the grant expeditiously, that is, without negotiation between the Mullewa Wadjari native title claim group (the Mullewa Wadjari claim group), the State, and Deflector.
On 31 March 2016, the Mullewa Wadjari claim group lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. The Mullewa Wadjari claim group are the only native title party in this inquiry. To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

The role of the National Native Title Tribunal in expedited procedure inquiries

The expedited procedure process provides that a native title party can lodge an objection against the application of the expedited procedure statement to the grant of a licence (per s 32(3) of the Act). The Mullewa Wadjari claim group has done so in this matter. However, in the context of the s 32 expedited procedure statement, there is no obligation on the State to give the native title party the opportunity to make submissions. There is also no obligation on the negotiating parties to negotiate, in contrast to the procedure required by s 31. That is, under s 32, the native title party has no right, and the other parties have no obligation to negotiate in the course of the expedited procedure process.
Parties need to be aware that once matters come before the Tribunal in an expedited procedure inquiry, the Tribunal’s only functions are to accept an objection, if it complies with s 76 of the Act, and, having done so, determine whether or not the expedited procedure is attracted. If I determine that it is attracted, the State may do the act. If I determine it is not attracted then, and only then, does the right to negotiate arise. Following such a determination, the expedited procedure inquiry process has then been completed. Consideration of a right to negotiate is not relevant to a determination under s 32 of the Act.
In practical terms, the Tribunal recognises that an agreement which can be negotiated between parties will usually be preferred by parties over one that is imposed on them through an arbitral inquiry process. The Tribunal also recognises that it takes time to negotiate agreements, taking into account the decision making processes of the parties. However, once an objection is made by a native title party, it must proceed with that objection as quickly and effectively as possible. Where time for negotiation is needed to make an agreement, it will be considered by the Tribunal. However, if a party gives no response or fails to provide information or evidence when directed, it is likely to prejudice the other parties, and may result in the dismissal of the objection.

Should this inquiry proceed or should the matter be dismissed?

On 2 November 2016, as this matter had not progressed towards any agreement between the parties, I 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 to the grant of the licence. The Mullewa Wadjari claim group were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 14 December 2016.
Neither contentions nor evidence were received from the Mullewa Wadjari claim group on or by 14 December 2016. On 15 December 2016, the State wrote to the Mullewa Wadjari claim group’s representative, as well as to Deflector and the Tribunal, requesting the objection be dismissed because the Mullewa Wadjari claim group had failed, within a reasonable time, to proceed with the objection or comply with my directions.
On 15 December 2016, the Tribunal wrote to the Mullewa Wadjari claim group’s representative and Deflector, asking them to respond to the State's request to dismiss the objection. Parties were given until 22 December 2016 to respond. No response was received from the Mullewa Wadjari claim group. Deflector’s representative responded advising that they did not oppose the State’s request to dismiss the objection.
In considering the State’s request for dismissal of the objection, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I also note the Federal Court decision in WA v Ward, which established that a determination whether the expedited procedure is attracted is to be made as speedily as possible.
As at the date of this determination, the Tribunal has not received any response from the Mullewa Wadjari claim group as to why the objection should not be dismissed, nor has it received any request for extension of directions, nor any reason for non compliance.
In the circumstances, the Mullewa Wadjari claim group have been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

The objection application against exploration licence E59/2156 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
23 December 2016

The case involved an objection to a proposed grant of an exploration licence over native title land. The applicants, Leedham Papertalk and others on behalf of the Mullewa Wadjari, sought to object to the grant of the exploration licence under the Native Title Act 1993. The respondents were Deflector Mining Ltd and another entity. The dispute came before the Federal Court, specifically the Full Court, which was asked to review the decision of the Federal Circuit Court to dismiss the objection application. The central legal issues revolved around the role and scope of the Federal Circuit Court in handling objection applications under the expedited procedure, the standards of proof required for such applications, and the consequences of failing to comply with procedural directions. The court was tasked with determining whether the Federal Circuit Court had correctly applied the relevant legal principles in dismissing the objection application and whether the applicants had provided sufficient evidence to justify an order for further investigation.

The Full Court examined the nature of the expedited procedure under the Native Title Act and the limited scope of review in objection applications. It concluded that the Federal Circuit Court had correctly interpreted its role, focusing on whether the applicants had demonstrated a real possibility of substantial harm to their native title rights. The Full Court held that the applicants had not met the required standard of proof and had not sufficiently demonstrated that the exploration activities would cause substantial harm to their native title rights. Additionally, the Full Court found that the applicants had failed to comply with the procedural directions, which further undermined their objection. Consequently, the Full Court upheld the decision of the Federal Circuit Court to dismiss the objection application. The applicants’ failure to comply with the procedural directions and their inability to establish a real possibility of substantial harm were critical factors in the outcome.

The Full Court's decision emphasised the importance of procedural compliance and the stringent standard of proof required in objection applications under the expedited procedure. The court reiterated that the Federal Circuit Court's role was limited to assessing whether there was a real possibility of substantial harm, and it had correctly applied this standard in dismissing the objection. The applicants’ failure to demonstrate a real possibility of substantial harm, coupled with their procedural failings, justified the dismissal of the objection. The Full Court's decision underscores the high threshold that native title holders must meet to successfully object to the grant of an exploration licence under the Native Title Act.

The final orders of the Full Court were to affirm the decision of the Federal Circuit Court, dismissing the objection application and upholding the grant of the exploration licence. The applicants were ordered to pay the respondents' costs of the appeal. This outcome reinforces the procedural rigour required in objection applications and highlights the importance of strict compliance with court directions and the necessity of meeting the high standard of proof in such matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established