Ike Simpson & Others on behalf of Wajarri Yamatji/Western Australia/FMG Pilbara Pty Ltd
[2011] NNTTA 150
•3 August 2011
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Others on behalf of Wajarri Yamatji/Western Australia/FMG Pilbara Pty Ltd, [2011] NNTTA 150 (3 August 2011)
Application Nos: WO09/871, WO09/872
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Ike Simpson & Others on behalf of Wajarri Yamatji (WC04/10) (native title party)
-and-
The State of Western Australia (Government party)
-and-
FMG Pilbara Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal:Hon C J Sumner, Deputy President
Place:Perth
Date of dismissal: 18 July 2011
Date of reasons: 3 August 2011
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliance – objection applications 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 Alissa Lovering, Yamatji Land and Sea Council
Representative of the
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Ms Denice Johns, Fortescue Metals Group Ltd
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 15 July 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E52/2340 and E52/2341 to FMG Pilbara Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On 13 November 2009, Ike Simpson & Others on behalf of Wajarri Yamatji – Native Title Claim No WC04/10, registered from 5 December 2005 (‘the native title party’) made expedited procedure objection applications to the Tribunal in relation to E52/2340 (WO09/871) and E52/2341 (WO09/872).
Relevant facts
On 30 November 2009, the Tribunal made directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. These directions allowed a four month period from the closing date for objections to allow the parties to negotiate to see whether the objection could be resolved by consent. The native title party was to provide its contentions and documentary evidence by 15 March 2010. The directions contained 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.
At a status conference convened on 13 May 2011 I was advised that no agreement had been reached. Given the age of the objections I made directions which required the native title party to comply with directions by 18 July 2011 and imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Act in the event of non-compliance by the native title party by the due date, being 18 July 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).
Neither contentions nor evidence were received from the native title party on or before 18 July 2011 and no explanation was offered for the failure to comply with the Tribunal’s directions despite the native title party having been informed of the possible consequences of a failure to comply. The springing order has resulted in dismissal of WO09/871 and WO09/872.
Decision
Expedited procedure objection applications WO09/871 and WO09/872 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Hon C J Sumner
Deputy President
3 August 2011
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