Adam Standard & Others on behalf of Ngarlawangga People/Western Australia/FMG Pilbara Pty Ltd

[2011] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Adam Standard & Others on behalf of Ngarlawangga People/Western Australia/FMG Pilbara Pty Ltd, [2011] NNTTA 19 (22 February 2011)

Application No:        WO09/968

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

-and-

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

Adam Standard & Others on behalf of Ngarlawangga People – WC05/3 (native title party)

-and-

The State of Western Australia (Government party)

-and-

FMG Pilbara Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            10 January 2011
Date of reasons:              22 February 2011

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in the event of non-compliance – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103

Representative of the

native title party:               Ms Lea Notte, Pilbara Native Title Service

Representatives of the  

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

Representative of the

grantee party:  Ms Denice Johns, FMG Pilbara Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 12 August 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2382 to FMG Pilbara Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 11 December 2009, Adam Standard & Others on behalf of Ngarlawangga – Native Title Claim No. WC05/3, registered from 9 June 2005 (‘the native title party’) made expedited procedure objection application to the Tribunal. 

Relevant facts

1. The Tribunal made directions on 11 January 2010, 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 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.

2. A number of conferences were held between April 2010 and August 2010 where parties advised they were negotiating the terms of an Alternative Heritage Agreement (‘AHA’). Directions were amended a number of times to allow negotiations to continue.

3. On 26 August 2010, I convened a status conference where parties advised negotiations were still ongoing but were stalled whilst waiting feedback from the native title party claim lawyer regarding the proposal made by FMG. Direction dates were amended at the request of the Government party to allow further time for parties to negotiate. The Tribunal’s directions imposed a springing order on the native title party which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Act if there is non-compliance by the native title party by the due date, being 18 October 2010 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

4. The direction dates were amended twice further, both times maintaining the imposition of a springing order on the native title party due date. The most recent amendment to direction dates, approved by myself on 29 November 2010, required native title party compliance on or before 10 January 2011.

5. The Government party has complied with directions.  Neither contentions nor evidence has been received from the native title party and no explanation has been offered for the failure to comply with the Tribunal’s directions.  The springing order, applied to the Tribunal directions on 29 November 2010, has resulted in dismissal of the application.

Decision

1. Expedited procedure objection application WO09/968 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 February 2011