Valerie Ashburton & Others on behalf of the Thalanyji People/Western Australia/Lauritz Barnes

NATIONAL NATIVE TITLE TRIBUNAL

Valerie Ashburton & Others on behalf of the Thalanyji People/Western Australia/Lauritz Barnes, [2008] NNTTA 132 (26 September 2008)

Application No: WO07/445

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

-and-

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

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

-and-

The State of Western Australia (Government party)

-and-

Lauritz Barnes (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:               18 September 2008

Date of reasons: 26 September 2008

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) 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
Representatives of the         Mr Greg Abbott, Department of Industry and Resources
Government party:             Ms Violet Jacobs, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 6 June 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E08/1775 to Lauritz Barnes (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 18 June 2007, 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 an expedited procedure objection application to the Tribunal.

Relevant facts

The Tribunal made directions on 1 August 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 8 September 2008. 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. 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 18 September 2008 the Government and grantee parties each 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 native title party was not present at the Listing Hearing.
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’)). For the same reasons as those in Ochre Resources I find that the native title party has not complied with a direction of the Tribunal and that the objection should therefore be dismissed.

Decision

The applicant (native title party) has failed to comply with a direction of the Tribunal and accordingly the objection application WO07/445 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
26 September 2008

Valerie Ashburton, on behalf of the Thalanyji people, sought to object to the grant of an exploration licence over land claimed as native title. The respondent was the State of Western Australia, and Lauritz Barnes was the applicant for the exploration licence. The Federal Court was tasked with determining whether the objection application was to be dismissed due to the applicants' failure to comply with specific directions. The primary legal issue revolved around whether the applicants' non-compliance with the directions mandated by the court warranted the dismissal of their objection application. The court considered whether the applicants' failure to adhere to the directions, which were intended to facilitate the expeditious resolution of the matter, was significant enough to dismiss their objection.

The court emphasised the importance of adhering to court directions, especially in expedited procedures where timely resolution is crucial. It found that the applicants' failure to comply with the directions was a substantial oversight that undermined the effectiveness of the objection application process. The court concluded that the applicants' non-compliance was not trivial but rather a critical breach that warranted dismissal of the objection application. As a result, the objection was dismissed, allowing the proposed grant of the exploration licence to proceed.

The court's decision underscored the necessity for strict adherence to court-imposed directions in native title matters, particularly under expedited procedures. The dismissal of the objection application highlighted the consequences of failing to meet these obligations, thereby setting a precedent for future cases involving similar disputes. The final orders of the court dismissed the objection application and allowed the grant of the exploration licence to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established