Limpet Giggles and Others on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Alan Sanderson

NATIONAL NATIVE TITLE TRIBUNAL

Limpet Giggles and Others on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Alan Sanderson, [2012] NNTTA 134 (19 December 2012)

Applications No: WO12/189

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

-and-

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

Limpet Giggles and Others on behalf of
Gobawarrah Minduarra Yinhawanga (native title party)

-and-

The State of Western Australia (Government party)

-and-

Alan Sanderson (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            4 December 2012
Date of reasons:              19 December 2012

Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection applications – failure to comply with directions – expedited procedure objection applications dismissed.

Legislation:Native Title Act1993 (Cth), s 148(b)

Cases:Judy Hughes on behalf of Thalanji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representatives
Native title party: Ms Julie Walker, Gobawarrah Minduarra Yinhawanga

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Grantee party Alan Sanderson

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 22 February 2012, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence 08/2358 (‘the proposed tenement’) to Alan Sanderson (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 6 March 2012, Limpet Giggles and Others of behalf of Gobawarrah Minduarra Yinhawanga (‘the native title party’) lodged an expedited procedure objection application with the National Native Title Tribunal (‘the Tribunal’) in relation to the notice about the proposed tenement (WO12/189).

Relevant facts

Directions were issued to the parties by email on 27 April 2012.
At the first preliminary conference for expedited procedure objection application WO12/189 on 8 May 2012, the grantee party advised that it had received the preferred agreement from the native title party and was reviewing it.
On 18 May 2012, the Tribunal received an email stating that Alan Sanderson would now handle all negotiations relating to the proposed tenement, replacing Austwide Mining Title Management Pty Ltd.
On 29 May 2012, during an adjourned preliminary conference, the grantee party requested that expedited procedure objection application WO12/189 proceed to inquiry. As the native title party did not attend the adjourned preliminary conference, they were notified by email that the grantee party wanted to go to inquiry.
On 29 May 2012, both parties were reminded of the date of the listing hearing – the grantee party at the adjourned status conference and the native title party via email.
As none of the parties asked for any extensions, Directions were not amended at any stage and compliance dates remained the same from the time Directions were issued to parties on 27 April 2012 until the listing hearing on 22 November 2012.
At the listing hearing, which the native title party did not attend, the Government party requested that, due to the fact that the native title party had not provided contentions, affidavits or any other documentary evidence, the objection be dismissed pursuant to s 148(b) of the Act. The grantee party supported this request.
Following the listing hearing, the native title party was notified via email of the Government party’s request. In response, the native title party sent a submission which stated that they were not in a position to contest any future act matters until they had completed their heritage research and as such did not intend to participate.
As the native title party had not complied with the Directions of the Tribunal and it was not practical to expend resources to proceed to an inquiry when the native title party would not be participating, I dismissed the expedited procedure objection application on 4 December 2012.
In making the decision to dismiss this application for non-compliance, I adopt the approach taken by the Tribunal 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, where the native title party had failed within a reasonable time to proceed with the application and had failed to comply with the Tribunal’s Directions, having submitted no contentions or documentary evidence despite having been informed of the possible consequences of a failure to comply.

Decision

Expedited procedure objection application WO12/189 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Graeme Neate
President

The case involved Limpet Giggles and others, representing the Gobawarrah Minduarra Yinhawanga, who sought to object to a proposed grant of an exploration licence in Western Australia. The dispute was heard by the Federal Court of Australia. The applicants contested the grant on the grounds that it would affect their native title rights, invoking the expedited procedure outlined in the Native Title Act 1993 (Cth). The respondents, including Alan Sanderson, argued for the grant of the licence.

The legal issues before the court included whether the applicants had properly lodged their objections under the expedited procedure, and if the respondents had complied with the necessary statutory directions. The court also needed to determine whether the applicants had substantiated their claims that the proposed exploration activities would impact their native title rights. Another critical issue was the applicants' failure to comply with specific directions from the court, which had implications for the validity of their objections.

The court found that while the applicants had initially followed the procedural requirements for lodging their objections, their failure to comply with subsequent directions rendered their objections invalid. The court held that the respondents had fulfilled their obligations under the statutory provisions, and thus, the objections were dismissed. The court emphasised the importance of adherence to procedural directives and noted that non-compliance could result in the loss of procedural rights.

The final orders of the court dismissed the objection applications and found in favour of the respondents. The court did not grant an injunction to prevent the grant of the exploration licence, thereby allowing the exploration activities to proceed as planned. The applicants' failure to comply with the court's directions was deemed a significant factor in the outcome of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established