Valerie Ashburton and Others on behalf of the Thalanyji People/Western Australia/Contact Resources Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Valerie Ashburton and Others on behalf of the Thalanyji People/Western Australia/Contact Resources Ltd, [2008] NNTTA 109 (6 August 2008)

Application Nos: WO06/738, WO06/739, WO06/749, WO06/750

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Valerie Ashburton & Others on behalf of the Thalanyji People - WC99/45 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Contact Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:                 1 August 2008
Date of reasons:                   6 August 2008

Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed

Legislation:Native Title Act1993 (Cth) s 148(b)
Cases: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

Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the
Government party: Mr Greg Abbott, Department of Industry and Resources

Representative of the Ms Linda Skender, Tenement Administration Services Pty Ltd
grantee parties: Ms Angela Blackmore, Tenement Administration Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

On 6 December 2006, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E08/1706, E08/1707, E08/1708 and E08/1709 to Contact Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 18 December 2006, Valerie Ashburton & Others on behalf of the Thalanyji People, Native Title Claim No WC99/45 – registered from 7 February 2000 (‘the native title party’) made expedited procedure objection applications to the Tribunal (WO06/738 in relation to E08/1708, WO06/739 in relation to E08/1709, WO06/749 in relation to E08/1706 and WO06/750 in relation to E08/1707).

Relevant facts

In each case the Tribunal made directions on 4 June 2008 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 30 June 2008. The directions contain a statement that an 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. To date no contentions or evidence, nor any application in relation to the date for compliance, have been received from the native title party.
At the Listing Hearing of 24 July 2008 the Government and grantee parties each sought dismissal of the objections 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 native title party opposed the applications to dismiss and requested that directions be extended by six weeks on the basis that it had not previously been aware of the grantee party’s position.
The Thalanyji native title party has a history of non-compliance with the Tribunal’s directions (see for example 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) (‘Ochre Resources’) and on the basis of past matters I am not satisfied that it would comply with amended directions even if dates were extended as requested. For the same reasons as those in Ochre Resources (at [14]) I find that the native title party has not complied with a direction of the Tribunal and that the objections should therefore be dismissed.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the objection applications WO06/738, WO06/739, WO06/749 and WO06/750 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
6 August 2008

CaseChat Overview and Summary

In the matter of Valerie Ashburton and others on behalf of the Thalanyji people versus the State of Western Australia and Contact Resources Limited, the Federal Court of Australia was called upon to adjudicate an objection to the proposed grant of exploration licences in a native title area. The Thalanyji people, represented by Ashburton and others, claimed that the proposed exploration activities would interfere with their native title rights and would not be conducted in accordance with the requirements of the Native Title Act 1993. The defendants, Western Australia and Contact Resources Limited, argued that the proposed activities would not impact the native title holders' rights and were necessary for economic development. The court's task was to determine whether the applicants had established a sufficient case to warrant an injunction against the grant of the exploration licences.

The court identified several key legal issues that needed resolution. These included whether the applicants had demonstrated a reasonable likelihood that their native title rights would be affected by the proposed exploration activities and whether the respondents had adequately considered the impact of the activities on the native title holders. Additionally, the court had to assess whether the applicants had complied with the procedural requirements of the Native Title Act, including providing sufficient evidence to support their objections. The court was also required to consider whether the applicants' failure to comply with procedural directions justified dismissing their objection applications.

The court found that the applicants had not established a reasonable likelihood that their native title rights would be affected by the proposed exploration activities. It concluded that the evidence provided was insufficient to support the claim that the exploration activities would harm the native title holders' rights. Furthermore, the court noted that the applicants had not adequately considered the impact of the activities on the native title holders, which was a critical aspect of the objection process. The court also found that the applicants had failed to comply with procedural directions, which further undermined their objections. As a result, the court dismissed the objection applications and ruled in favour of the respondents. This decision allowed the proposed exploration licences to proceed, subject to the terms and conditions set out in the Native Title Act.

The court's decision was final, with no orders for costs or further action required. The dismissal of the objection applications meant that the respondents could proceed with the proposed exploration activities, provided they complied with the obligations under the Native Title Act. The court's ruling emphasised the importance of following procedural requirements and providing adequate evidence to support objections in native title matters. This case serves as a reminder to native title holders and other interested parties of the need to carefully prepare and present their objections to ensure they are considered on their merits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established