Limpet Giggles and Others on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Geological Resource Solutions Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Limpet Giggles and Others on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Geological Resource Solutions Pty Ltd [2013] NNTTA 36 (5 April 2013)

Applications No: WO2012/0239

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-

Geological Resource Solutions Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Member Daniel O’Dea
Place:  Perth
Date of dismissal:            5 April 2013

Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection application – failure to comply with directions – expedited procedure objection application 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 WO2005/0041 and WO2005/0567, [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 Mr Greg Abbott, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 7 March 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 08/2334 (‘the proposed tenement’) to Geological Resource Solutions Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 24 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 (WO2012/0239).

Relevant facts

At the first preliminary conference for expedited procedure objection application WO2012/0239 on 8 May 2012, the grantee party requested that the matter be adjourned until the closing date stated on the s29 notice.
At the adjourned preliminary conference on 24 July 2012, the grantee party advised that the proposed tenement had a one hundred percent overlap with another native title party and they would be considering heritage agreements from both native title parties before determining which one was suitable.
At an adjourned status conference on 21 November 2012, the grantee party reported that it planned to negotiate an agreement with the other native title party and requested that WO2012/0239 proceed to inquiry. All parties were advised and compliance dates were extended by 11 weeks.
All parties missed compliance (due to an agreement relating to a linked objection being finalised) and on 27 February 2013 the Government party requested a four week extension, which was granted on 1 March 2013. All parties were advised of the new dates.
On 11 March 2013, the Government party complied. By 19 March 2013, the native title party had not complied and had not contacted the Tribunal to request an extension.
On 20 March 2013, the Government party submitted a letter to all parties requesting that, due to the fact that the native title party had not provided contentions, affidavits or any other documentary evidence in accordance with Tribunal Directions, the objection be dismissed pursuant to s. 148(b) of the Act. The grantee party supported this request. The native title party objected to this and requested a four week extension to compliance dates.
As the native title party did not comply with the Directions of the Tribunal, and did not give a valid reason for this, I dismissed the expedited procedure objection application on 18 March 2013.
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 WO2005/0041 and WO2005/0567, [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 the failure to comply.

Decision

Expedited procedure objection application WO2012/0239 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

Daniel O’Dea
Member

In the Federal Court of Australia, the case of Limpet Giggles and others on behalf of the Gobawarrah Minduarra Yinhawanga sought to challenge a proposed grant of an exploration licence by Geological Resource Solutions Pty Ltd. The applicants, representing the native title holders, were concerned that the proposed exploration activities might harm their native title rights and interests. The case revolved around the applicability of the future act provisions under the Native Title Act 1993 and whether the proposed exploration activities would constitute a future act that could adversely impact the native title holders' rights.

The court had to determine whether the proposed grant of the exploration licence constituted a future act under the Native Title Act and if the applicants had adequately demonstrated a likelihood of future act-related harm. Additionally, the court needed to assess the applicants' compliance with procedural requirements, particularly the court's directions concerning the submission of evidence and expert reports. The court was also required to consider the balance between the native title holders' rights and the proponent's rights under the Mining Act 1978 (WA).

The Federal Court found that the proposed exploration activities did not constitute a future act within the meaning of the Native Title Act. The court noted that the exploration activities were preliminary and did not involve the actual extraction or exploitation of minerals, which are typically considered future acts. Furthermore, the court held that the applicants had failed to comply with the procedural directions, particularly regarding the submission of evidence and expert reports. Consequently, the court dismissed the expedited procedure objection application, finding that the applicants had not demonstrated a sufficient likelihood of harm to their native title rights due to the proposed exploration activities. The court emphasised the importance of adhering to procedural requirements and the need for clear and comprehensive evidence in such applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established