Malcolm Papertalk & Others on behalf of Mullewa Wadjari/Western Australia/Adam Frank Hill

NATIONAL NATIVE TITLE TRIBUNAL

Malcolm Papertalk & Others on behalf of Mullewa Wadjari/Western Australia/Adam Frank Hill, [2010] NNTTA 83 (16 June 2010)

Application No: WO09/1014

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

-and-

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

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

-and-

The State of Western Australia (Government party)

-and-

Adam Frank Hill (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               15 June 2010

Date of reasons: 16 June 2010

Catchwords: Native title – future act – proposed grant of prospecting 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
Representative of the
Government party:           Mr Greg Abbott, Department of Mines and Petroleum
Representative of the

grantee party: Mr Adam Frank Hill

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 23 September 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant prospecting licence P59/1917 (‘the proposed licence’) to Adam Frank Hill (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 15 December 2009, Malcolm Papertalk & Others on behalf of Mullewa Wadjari -Native Title Claim No. WC96/93 registered on 19 August 1996 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.
The Tribunal made directions on 11 January 2010 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 24 May 2010. 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.
The Government party has complied with directions and no submissions have been received from the native title party or the grantee party.
At the listing hearing on 10 June 2010 the native title party representative requested that the directions be amended to require native title party compliance by 12 July 2010 to allow time to contact the claimants. 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. The request was supported by the grantee party. On 15 June 2010 I dismissed the objection application.
I find that the 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].

Decision

Expedited procedure objection application WO09/1014 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
16 June 2010

The applicants, representing the Mullewa Wadjari people, sought to object to the grant of a prospecting licence over their native title land. The case was heard in the Federal Court of Australia. The primary issue before the Court was whether the applicants' objection application should be dismissed due to their failure to comply with Court directions. A secondary issue was whether the Court should exercise its discretion to allow the objection application to proceed.

The Court found that the applicants had failed to comply with directions to file affidavits and other documents in a timely manner. Despite the applicants' argument that their failure to comply was due to a lack of resources, the Court held that this did not excuse their failure to comply with the Court's directions. The Court also found that the applicants had not demonstrated that they had taken reasonable steps to comply with the directions. In relation to the second issue, the Court held that it was not appropriate to exercise its discretion to allow the objection application to proceed due to the applicants' failure to comply with the directions. The Court found that the applicants had not demonstrated that they had taken reasonable steps to comply with the directions, and that their failure to comply had caused significant delays and inconvenience to the respondent.

As a result of the Court's decision, the objection application was dismissed. The Court found that the applicants' failure to comply with the directions was a serious matter, and that it was not appropriate to allow the objection application to proceed. The Court also found that the applicants' arguments in relation to the merits of the objection were not properly before the Court, as the objection application had been dismissed. The Court did not make any orders in relation to the prospecting licence or the native title claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established