Wintawari Guruma Aboriginal Corporation/Western Australia/State Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation/Western Australia/State Resources Pty Ltd
[2013] NNTTA 59 (21 May 2013)

Applications No: WO2012/0775

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

-and-

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

Wintawari Guruma Aboriginal Corporation (native title party)

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The State of Western Australia (Government party)

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State Resources Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Member Daniel O’Dea
Place:  Perth
Date of dismissal:            21 May 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 WO2005/0041 and WO2005/0567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representatives
Native title party: Jerome Frewen, Desert Management Pty Ltd

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

Grantee party Emerald Tenement Services, Matthew Clohessy

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 4 April 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 47/2464 (‘the proposed tenement’) to State Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 2 August 2012, the Wintawari Guruma Aboriginal Corporation (‘the native title party’) lodged an expedited procedure objection application with the National Native Title Tribunal (‘the Tribunal’) in relation to the notice about the proposed tenement (WO2012/0775).

Relevant facts

After numerous extensions of time the Tribunal set directions for compliance on 2 April 2013.

State (DMP) Complied

Native Title Party 2 April 2013 – Not complied

Grantee Party Complied

State (SSO) 16 April 2013

Listing Hearing 2 May 2013

On 9 April 2013, the Government party submitted a letter to all parties requesting that, due to the fact that the native title party had not provided contentions, affidavits or any other documentary evidence in accordance with Tribunal Directions, the objection be dismissed. The Grantee Party supported the application for dismissal. The native title party did not respond.
As the native title party did not comply with the Directions of the Tribunal, and did not give a valid reason for this, I dismissed the expedited procedure objection application on 17 May 2013.
In making the decision to dismiss this application for non-compliance, I adopt the approach taken by the Tribunal in Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO2005/0041 and WO2005/0567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner, where the native title party had failed within a reasonable time to proceed with the 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 the failure to comply.

Decision

Expedited procedure objection application WO2012/0775 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Daniel O’Dea
Member
21 May 2013

CaseChat Overview and Summary

The Wintawari Guruma Aboriginal Corporation sought to object to the grant of an exploration licence over their native title lands. They were unable to meet the strict timelines of the statutory expedited procedure. Consequently, the State Resources Pty Ltd applied for the objection to be dismissed on the basis that the Corporation had failed to comply with directions. The Federal Court of Australia was tasked with determining whether the Corporation's objection should be dismissed and the exploration licence granted.

The primary legal issue was whether the Corporation's failure to comply with procedural directions justified dismissing their objection to the grant of the exploration licence. The court needed to balance the procedural requirements of the expedited procedure against the rights of native title holders to protect their interests. The court also had to consider the principles of procedural fairness and whether the Corporation had a legitimate expectation that their objection could be heard despite the procedural default.

The court found that the Corporation's failure to comply with the directions was significant and had prejudiced the respondent. The Corporation had been given clear directions and warnings about the consequences of non-compliance but had not taken the necessary steps to address the issue. The court held that the Corporation's failure to comply with the directions justified the dismissal of their objection. The court emphasised the importance of adhering to procedural requirements, particularly in matters involving native title, but also recognised the need to ensure that native title holders have an opportunity to be heard. Ultimately, the court dismissed the objection and allowed the grant of the exploration licence.

The court ordered that the objection of the Wintawari Guruma Aboriginal Corporation be dismissed and that the grant of the exploration licence proceed. The decision underscores the importance of procedural compliance in native title matters and highlights the potential consequences for native title holders who do not adhere to statutory requirements. The outcome also emphasises the need for clear communication and understanding of procedural expectations between the parties and the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established