Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Eagle Nickel Limited

[2008] NNTTA 141

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/Eagle Nickel Limited, [2008] NNTTA 141 (13 October 2008)

Application No:                 WO08/442

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 & Others on behalf of the Mullewa Wadjari Community – WC96/93 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Eagle Nickel Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               2 October 2008

Date of reasons:                 13 October 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) s 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

Representatives of the       Mr Greg Abbott, Department of Industry and Resources

Government party:           Ms Violet Jacobs, Department of Industry and Resources

Representative of the        Ms Melissa Greer,

grantee party  Hetherington Exploration & Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 23 April 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E59/1433 (‘the proposed licence’) to Eagle Nickel Limited (‘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 twenty-seven kilometres north-west of Yalgoo in the Shire of Yalgoo and is entirely overlapped by the registered native title claims of Mullewa Wadjari (WC96/93 – registered from 19 August 1996) and Wajarri Yamatji (WC04/10 - registered from 15 December 2005).

3. On 29 April 2008, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community (‘the native title party’) made an expedited procedure objection application to the Tribunal.

4. On 15 August 2008, Ike Simpson & Others on behalf of the Wajarri Yamatji People also made an expedited procedure application to the Tribunal in relation to the proposed licence (WO08/652).  The Wajarri Yamatji People’s objection is still before the Tribunal.

Relevant facts

1. The Tribunal made directions on 18 July 2008 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 22 September 2008. 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.

2. The Government 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.

3. At the Listing Hearing of 2 October 2008 the native title party requested the matter be adjourned till after a claim meeting scheduled for 29 October 2008 with directions to be amended to require native title party compliance by 12 November 2008. The grantee party 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. This request was supported by the Government party.

4. I find that the Mullewa Wadjari 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 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].

5. The Tribunal observes that the proposed licence cannot be cleared for grant in relation to native title issues until the linked objection WO08/652, relating to the Wajarri Yamatji People, is finalised.

Decision

1. The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the objection application WO07/442 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
13 October 2008