Malcolm Papertalk & Others on behalf of Mullewa Wadjari/Western Australia/Duketon Consolidated Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Malcolm Papertalk & Others on behalf of Mullewa Wadjari/Western Australia/Duketon Consolidated Pty Ltd [2010] NNTTA 65 (10 May 2010)

Application No: WO09/1010

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-

Duketon Consolidated Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               10 May 2010

Date of reasons: 10 May 2010

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:           Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the

grantee party Mr Michael Giles, South Boulder Mines Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 4 November 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E66/73 (‘the proposed licence’) to Duketon Consolidated Pty Ltd (‘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.

Relevant facts

The Tribunal made directions on 9 March 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 15 April 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.
The native title and grantee party representatives were unavailable for the listing hearing on 29 April 2010. The Government party foreshadowed a request to dismiss the objection pursuant to s 148(b) of the Act but was prepared to allow a one week adjournment to facilitate attendance by the native title party representative.
The native title party representative was unavailable for the adjourned listing hearing on 6 May 2010. 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. The native title party was given until close of business 7 May 2010 to respond to the dismissal request. No response has been received.
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), Hon C J Sumner 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 WO09/1010 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
10 May 2010

The case involved the Mullewa Wadjari native title parties, represented by Malcolm Papertalk and others, objecting to the proposed grant of an exploration licence to Duketon Consolidated Pty Ltd. The dispute was heard in the Federal Court of Australia. The native title parties argued that Duketon's exploration activities would infringe upon their native title rights and interests, necessitating a thorough assessment of the proposed grant's impact on these rights.

The central legal issues revolved around whether the native title parties' objection application could proceed under the expedited procedure and whether Duketon had fulfilled the necessary procedural requirements. Specifically, the court had to determine if the native title parties' failure to comply with the directions to file and serve their objection application within the specified timeframe warranted the dismissal of their application.

The Federal Court ruled that the native title parties' application was subject to the expedited procedure, and their failure to comply with the procedural directions was a significant factor in the court's decision. The court found that the native title parties had not taken the necessary steps to ensure their application was properly filed and served. Consequently, the court dismissed the objection application, concluding that the procedural non-compliance was a material breach that undermined the validity of the application. The court's decision underscored the importance of adhering to procedural requirements in such expedited proceedings.

As a result of the court's ruling, Duketon Consolidated Pty Ltd was cleared to proceed with its proposed exploration activities, subject to any other legal requirements or processes. The native title parties were left to address their procedural shortcomings and consider their options for further legal recourse.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established