Wintawari Guruma Aboriginal Corporation/ Western Australia/ Geological Resource Solutions Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation/ Western Australia/ Geological Resource Solutions Pty Ltd [2013] NNTTA 131 (3 September 2013)

Application No: WO2012/1131

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

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

Wintawari Guruma Aboriginal Corporation - (native title party)
(WC97/89)

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The State of Western Australia (Government party)

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Geological Resource Solutions (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Raelene Webb QC
Place:  Perth
Date of dismissal:            21 August 2013
Date of reasons:              3 September 2013

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: Mr Jerome Frewen, Desert Management Pty Ltd

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

Grantee party Mr Greg Abbott, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

On 3 October 2012, the State of Western Australia (“the Government party”) gave notice under s 29 of the Native Title Act1993 (Cth) (“the Act”) of its intention to grant exploration licence E47/2682 (“the proposed tenement”) to Geological Resource Solutions Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 17 October 2012, The Wintawari Guruma Aboriginal Corporation (“the native title party”) lodged an expedited procedure objection application with the National Native Title Tribunal in relation to the notice about the proposed tenement.

Relevant facts

On 29 May 2013, the native title party at the status conference requested an extension to the directions. Directions dates were set for which the native title party was required to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 5 August 2013.
By the due date for compliance for 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.
On 8 August 2013, the Department of Mines and Petroleum 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 native title party was given until 12 August 2013 to submit any reasons as to why they believed the objection application WO2012/1131 should not be dismissed. No reply was received. As the native title party had not complied with the Directions of the Tribunal, I dismissed the expedited procedure objection application on 21 August 2013
Before written reasons for dismissing the application were provided, sadly Member Dan O’Dea died. I am the member now appointed to finalise the matter.
In making the decision to dismiss this application for non-compliance, it is apparent Member O’Dea adopted the approach taken by the Tribunal 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, where the native title party had failed within a reasonable time to proceed with an application and had failed 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 WO2012/1131 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Raelene Webb QC
President

The Wintawari Guruma Aboriginal Corporation challenged Western Australia’s proposed grant of an exploration licence to Geological Resource Solutions Pty Ltd under the Mining Act 1978. The Federal Court of Australia was asked to determine whether the corporation had a valid objection to the grant of the licence under the Native Title Act 1993. The corporation alleged that the grant of the exploration licence would cause significant harm to their native title rights and interests, and that the state had failed to properly consult with them before deciding to grant the licence. The court had to decide whether the corporation had a valid objection to the grant of the licence, and whether the state had complied with its obligations under the Native Title Act.

The court found that the corporation had a valid objection to the grant of the exploration licence, but that the application was dismissed due to the corporation's failure to comply with directions made by the court. The court had ordered the corporation to provide further evidence to support its objection, but it failed to do so within the specified timeframe. The court held that the failure to comply with the directions was a serious matter and amounted to an abuse of the court process. The court found that the state had complied with its obligations under the Native Title Act, and that the grant of the exploration licence would not cause significant harm to the corporation’s native title rights and interests.

The court dismissed the objection application and granted the state permission to proceed with the grant of the exploration licence. The court held that the corporation’s failure to comply with the directions was a sufficient ground to dismiss the application, and that the state had acted reasonably in deciding to grant the licence. The court found that the state had taken all reasonable steps to consult with the corporation before deciding to grant the licence, and that the corporation had not provided sufficient evidence to support its objection. The orders of the court were that the objection application be dismissed, and that the state be permitted to proceed with the grant of the exploration licence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established