Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/State Resources Pty Ltd

[2009] NNTTA 127

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community/Western Australia/State Resources Pty Ltd, [2009] NNTTA 127 (9 October 2009)

Application No:                 WO09/28

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-

State Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               8 October 2009

Date of reasons:                 9 October 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) 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

Representatives of the       Mr Greg Abbott, Department of Mines and Petroleum

Government party:           Ms Claire Malavaux, Department of Mines and Petroleum

Representative of the  

grantee party  Mr Matthew Clohessy, Emerald Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 28 January 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E70/3329 (‘the proposed licence’) to State Resources Pty 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 42 kilometres northerly of Mullewa in the Shire of Mullewa, and is 100 per cent overlapped by the registered native title claim of the Mullewa Wadjari Community (WC96/63 – registered from 19 August 1996), 68.13 per cent overlapped by the registered claim of the Wajarri Yamatji People (WC04/10 – registered from 5 December 2005) and 31.87 percent overlapped by the registered native title claim of the Amangu People (WC04/2 - registered from 3 March 2005).

3. On 30 January 2009, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.

4. On 28 May 2009, Ike Simpson & Others on behalf of the Wajarri Yamatji also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO09/329).  The Wajarri Yamatji Peoples’ objection is still before the Tribunal.

5. On 28 May 2009, Raymond Dann & Others on behalf of the Amangu People also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO09/330).  The Amangu People’s objection is still before the Tribunal.

Relevant facts

1. The Tribunal made directions on 17 February 2009 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 21 September 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.

2. The Government party has complied with directions and the grantee party advises that it will rely on the Government party’s contentions.  No submissions have been received from the native title party.

3. At the listing hearing on 8 October 2009 the native title party requested that the directions be amended to require native title party compliance by either 19 November or 3 December 2009 on the basis that the lawyer for the Mullewa Wadjari claim group is no longer representing them, and the group was in the process of finding alternative legal representation. The grantee party did not support this request. The Government 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.

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 objections WO09/329 and WO09/330, relating to the Wajarri Yamatji and Amangu Peoples, are finalised.

Decision

1. Expedited procedure objection application WO09/28 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
9 October 2009