Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/ Western Australia/ Australian Copper Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/ Western Australia/ Australian Copper Pty Ltd [2013] NNTTA 133 (3 September 2013)

Application No: WO2012/0155

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 & Ors on behalf of Gobawarrah Minduarra
Yinhawanga - (native title party)
(WC1997/043)

-and-

The State of Western Australia (Government party)

-and-

Australian Copper Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Raelene Webb QC
Place:  Perth
Date of dismissal:            21 August 2013
Date of reasons:              3 September 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 WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representatives

Native title party: Julie Walker, Gobawarrah Minduarra Yinhawanga

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

Grantee party: Andrej Karpinski, Korab Resources Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

On 30 November 2011, 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 E08/2307 (“the proposed tenement”) to Australian Copper Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 14 February 2012, Gobawarrah Minduarra Yinhawanga (“the native title party”) lodged an expedited procedure objection application with the National Native Title Tribunal in relation to the notice about the proposed tenement.

Relevant facts

On 24 June 2013, Directions dates were reinstated which set out that the native title party was required to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 15 July 2013.
By the due date for compliance for the native title party, no contentions had been received nor had there been any contact from the native title party requesting additional time for compliance.
On 5 August 2013, the Tribunal initiated that the expedited procedure objection application be dismissed under s 148(b) of the Act for failure of the native title party to comply with the Tribunal’s directions.
The native title party was given until 9 August 2013 to submit any reasons as to why they believed the objection application WO2012/0155 should not be dismissed. No reply was received. As the native title party had not complied with the Directions of the Tribunal, Member O’Dea dismissed the expedited procedure objection application on 21 August 2013.
Before written reasons for dismissing the application were provided, sadly Member O’Dea died. I am the member now appointed to finalise the matter.
In making the decision to dismiss this application for non-compliance, it is apparent Member O’Dea adopted 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 an 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 WO2012/0155 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Raelene Webb QC
President

The case before the Federal Court involved an objection to the proposed grant of an exploration licence over land claimed by native title holders, Limpet Giggles and others on behalf of the Gobawarrah Minduarra Yinhawanga, in Western Australia. The proposed exploration licence was to be granted by Australian Copper Pty Ltd. The court was asked to determine whether the objection to the grant of the licence, lodged under the expedited procedure, should proceed or be dismissed due to non-compliance with procedural directions. The Federal Court was the jurisdiction where the case was heard.

The primary legal issues before the court were whether the native title holders had properly lodged their objection under the expedited procedure as required by the Native Title Act 1993, and whether the failure to comply with procedural directions warranted the dismissal of their objection application. The court needed to examine the procedural requirements and assess whether the native title holders had fulfilled them adequately.

In its decision, the court found that the native title holders had not complied with the procedural directions issued by the court. Despite this, the court considered the broader context and the importance of the native title holders' rights and interests. However, the failure to adhere to the procedural directions was deemed significant enough to warrant the dismissal of the objection application. The court held that the procedural requirements were essential to ensure that the expedited procedure functioned effectively and that the parties' rights were adequately protected. As a result, the objection application was dismissed.

The final orders of the court reflected its decision to dismiss the objection application on the grounds of non-compliance with procedural directions. The court's ruling effectively allowed the proposed grant of the exploration licence to proceed, barring any further objection from the native title holders under the expedited procedure.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established