Johnson Taylor and Others on behalf of Njamal; Teddy Allen & Ors on behalf of Njamal #10/Western Australia/FMG Pilbara Pty Ltd

[2011] NNTTA 25

NATIONAL NATIVE TITLE TRIBUNAL

Johnson Taylor and Others on behalf of Njamal; Teddy Allen & Ors on behalf of Njamal #10/Western Australia/FMG Pilbara Pty Ltd, [2011] NNTTA 25 (24 February 2011)

Application Nos:       WO09/862, WO09/863, WO09/1051, WO09/1087, WO09/1089, WO09/1099, WO10/491, WO10/492, WO10/493, WO10/495, WO10/496, WO10/497, WO10/498, WO10/524, WO10/955

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Johnson Taylor and Others on behalf of Njamal – WC99/8

-and-

Teddy Allen & Ors on behalf of Njamal #10 – WC005 (WO10/524) (native title parties)

-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:              10 January 2011
Date of reasons:                 24 February 2011

Catchwords:  Native title – future act – proposed grant of exploration and prospecting 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 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 APPLICATIONS

Background

1. On the dates specified in the attached schedule, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant various exploration and prospecting licences to FMG Pilbara Pty Ltd (‘the grantee party’) and in each case included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On the dates specified in the attached schedule, Johnson Taylor and Others on behalf of Njamal – Native Title Claim No. WC99/8, registered from 3 June 1999 (‘the native title party’) made expedited procedure objection applications to the Tribunal. 

3. On 6 April 2010, Teddy Allen & Ors on behalf of Njamal #10 – Native Title Claim No. WC00/5, registered from 7 July 2011 (‘the native title party’) also made an expedited procedure objection application to the Tribunal in relation to exploration licence E45/3433 (WO10/524).

Relevant facts

1. The Tribunal made directions on the following dates, requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted.

   ·30 November 2009 in relation to WO09/862 and WO09/863

   ·11 January 2010 in relation to WO09/1051

   ·18 January 2010 in relation to WO09/1087, WO10/1089 and WO10/1099

   ·19 April 2010 in relation to WO10/491, WO10/492, WO10/493, WO10/495, WO10/496, WO10/497, WO10/498 and WO10/524

   ·2 August 2010 in relation to WO10/955

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.

1. 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.

2. On 26 August 2010, I convened an adjourned 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 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).

3. 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.

4. 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 applications.

Decision

1. Expedited procedure objection applications WO09/862, WO09/863, WO09/1051, WO09/1087, WO09/1089, WO09/1099, WO10/491, WO10/492, WO10/493, WO10/495, WO10/496, WO10/497, WO10/498, WO10/524 and WO10/955 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
24 February 2011

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

Tenement No(s).	Date of Govt Party Notification (s 29 notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party	Native Title Parties & Linked Claimant Objection No.	Date Directions Made	Dismissal Date by operation of the Springing Order
E45/3310	15/7/2009	WO09/862	16/11/2009	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3318	15/7/2009	WO09/863	16/11/2009	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3421	26/8/2009	WO09/1051	21/12/2009	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3270	23/9/2009	WO09/1087	21/12/2009	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3328	23/9/2009	WO09/1089	21/12/2009	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
P45/2721	23/9/2009	WO09/1099	21/12/2009	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3412	2/12/2010	WO10/491	6/4/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3413	2/12/2010	WO10/492	6/4/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011

Tenement No(s).	Date of Govt Party Notification (s 29 notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party	Native Title Party & Linked Claimant Objection No.	Date Directions Made	Dismissal Date by operation of the Springing Order
E45/3433	2/12/2010	WO10/493	6/4/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3433	2/12/2010	WO10/524	6/4/2010	FMG Pilbara Pty Ltd	Teddy Allen & Ors on behalf of Njamal #10	29/11/2010	10/1/2011
E45/3438	2/12/2010	WO10/495	6/4/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E45/3469	2/12/2010	WO10/496	6/4/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
P45/2748	2/12/2009	WO10/497	6/4/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
P45/2749	2/12/2009	WO10/498	6/4/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011
E46/872	24/3/2010	WO10/955	19/7/2010	FMG Pilbara Pty Ltd	Johnson Taylor and Others on behalf of Njamal	29/11/2010	10/1/2011