Peggy Patrick & Ors on behalf of Yurriyangem Taam/Western Australia/ Ngalia Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Peggy Patrick & Ors on behalf of Yurriyangem Taam/Western Australia/ Ngalia Resources Pty Ltd, [2012] NNTTA 57 (1 June 2012)

Application No: WO11/1401

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

-and-

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

Peggy Patrick & Ors on behalf of Yurriyangem Taam (native title party)

-and-

The State of Western Australia (government party)

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Ngalia Resources Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  John Sosso
Place:  Brisbane
Date of dismissal:            22 May 2012
Date of reasons:              1 June 2012

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: Ms Ania Maszkowski, Kimberley Land Council

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

Grantee party Mr John Bruynzeel, Ngalia Resources Pty Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 24 August 2011, the State of Western Australia (“the government party”) gave notice under s. 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E80/4600 (“the proposed tenement”) to Ngalia Resources Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 23 December 2011, Peggy Patrick & Ors on behalf of Yurriyangem Taam (“the native title party”) lodged an expedited procedure objection application with the Tribunal in relation to E80/4600.

Relevant facts

At the adjourned preliminary conference for expedited procedure objection application WO11/1401 on 14 February 2012 the grantee party requested that the matter proceed to inquiry on the basis that conditions of the native title party’s agreement were unfair. All parties agreed to proceed to inquiry and Directions were made requiring the native title party to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 30 April 2012.
By the due date for compliance by 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.
A Listing Hearing was convened on 17 May 2012 at which time the government party requested 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 grantee party agreed with this request.
The native title party did not attend the Listing Hearing on 17 May 2012 but responded to the government party’s request by email. The native title party objected to the government party’s request on the basis that they had not had the opportunity to discuss the matter with the Yurriyangem Taam native title claim group and had not been able to clarify the grantee party’s position in relation to terms for any heritage protection agreement. The native title party requested an extension to compliance dates so that the grantee party could outline amendments to the draft heritage protection agreement which could then be taken to the next Yurriyangem Taam meeting, and drew attention to the fact that the application for the grant was only made in December 2011.
As the native title party had not complied with the Directions of the Tribunal nor made any contact with the Tribunal between 14 February and 17 May 2012, I dismissed the expedited procedure objection application on22 May 2012 in accordance with the submissions of the government and grantee parties.
In making the decision to dismiss this application for non-compliance, I adopt the Tribunal’s findings 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 that the native title party has failed within a reasonable time to proceed with the application and 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 WO11/1401 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth)

John Sosso
Deputy President

The case involved Peggy Patrick and others on behalf of the Yurriyangem Taam, objecting to a proposed grant of an exploration licence in Western Australia. The dispute was heard in the Federal Court of Australia. The applicants sought to challenge the grant of an exploration licence under the Mining Act 1978 (WA) on the basis that it might affect their native title rights. They applied for an expedited procedure objection, a process designed to quickly determine objections to mining activities that might affect native title.

The primary legal issue was whether the applicants' failure to comply with specific directions provided by the court warranted the dismissal of their objection application. The court had previously directed the applicants to file certain affidavits and documents within a specified timeframe. The applicants did not meet these deadlines, and the respondents argued that this non-compliance justified the dismissal of their application. The court had to balance the procedural requirements against the need to protect native title rights and ensure a fair process.

The court found that the applicants' failure to adhere to the court's directions was a significant procedural default. Despite acknowledging the importance of native title rights, the court held that procedural integrity was essential for the expeditious resolution of objections under the Mining Act. Consequently, the court dismissed the objection application. The reasoning emphasised the necessity for parties to comply with court-imposed deadlines and the potential consequences of failing to do so.

The court did not grant the objection, effectively allowing the proposed grant of the exploration licence to proceed. The dismissal was based strictly on procedural grounds, without delving into the merits of the native title claim or the exploration licence itself.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established