Ike Simpson & Others on behalf of Wajarri Yamatji/Western Australia/FMG Resources Pty Ltd

[2011] NNTTA 152

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Others on behalf of Wajarri Yamatji/Western Australia/FMG Resources Pty Ltd, [2011] NNTTA 152 (3 August 2011)

Application No:                  WO10/479

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Ike Simpson & Others on behalf of Wajarri Yamatji (WC04/10) (native title party)

-and-

The State of Western Australia (Government party)

-and-

FMG Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

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 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 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 APPLICATION

Background

1. On 2 December 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2423 to FMG Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 31 March 2010, Ike Simpson & Others on behalf of Wajarri Yamatji – Native Title Claim No WC04/10, registered from 5 December 2005 (‘the native title party’) made an expedited procedure objection application to the Tribunal .

Relevant facts

1. On 19 April 2010, 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 2 August 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.

2. At a status conference convened on 13 May 2011 I was advised that no agreement had been reached. Given the age of the objection 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 application 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).

3. 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 WO10/479.

Decision

1. Expedited procedure objection applications WO10/479 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
3 August 2011