Kevin Cosmos on behalf of Yaburara & Mardudhunera / Western Australia / FMG Pilbara Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Cosmos on behalf of Yaburara & Mardudhunera / Western Australia / FMG Pilbara Pty Ltd, [2012] NNTTA 132 (6 December 2012)

Application No: WO11/924

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

-and-

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

Kevin Cosmos on behalf of Yaburara & Mardudhunera (native title party)

-and-

The State of Western Australia (Government party)

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FMG Pilbara Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            3 December 2012
Date of reasons:              6 December 2012

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), ss 32(4), 148(b)

Cases:Judy Hughes on behalf of Thalanji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representatives
Native title party: Ms Shirley Feng, Corser & Corser Lawyers

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

Grantee party Ms Gemma Phillips, FMG Pilbara Pty Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 6 April 2011, 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 E08/2004 (‘the proposed tenement’) 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 5 August 2011, Kevin Cosmos on behalf of Yaburara & Mardudhunera - native title claim no WC96/89, registered from 1 August 1996 (‘the native title party’) lodged an expedited procedure objection application with the National Native Title Tribunal in relation to the notice about the proposed tenement (WO11/924).

Relevant facts

On 22 October 2012, the Tribunal advised all parties that expedited procedure objection WO11/924 would now be proceeding to inquiry due to the age of the matter, unless either the objection or tenement application were withdrawn. All parties were reminded of amended Directions that were made requiring the native title party to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 19 November 2012.
On 19 November 2012, the native title party requested that Directions were amended so that they would be due to comply on 21 January 2013 in line with other tenements they were negotiating. The Tribunal reminded all parties that this matter was proceeding to inquiry on the set dates with no further extensions. Parties were also advised that in 15 months no agreement had been reached. The native title party was asked to provide written submissions to the Tribunal as to why this matter should not proceed to inquiry as required under s 32(4) of the Act so that a Member may determine if any further extensions to Directions can be made. No response was received.
On 26 November 2012, the grantee party made a submission for the objection to be dismissed pursuant to s 148(b) of the Act on the basis that the native title party had failed to comply with the Tribunal’s Directions, having submitted no contentions or documentary evidence by the directed date. The grantee party reiterated that the native title party had been on notice since 22 October 2012 that their contentions and documentary evidence were required to be provided by 19 November 2012 and that compliance dates for this matter would not be extended further.
On 29 November 2012, the native party made a submission to the Tribunal not to dismiss the objection as they were optimistic that a draft heritage agreement was close to its final form, and that a heritage agreement could be reached.
As the native title party had not complied with the Directions of the Tribunal, I dismissed the expedited procedure objection application on 3 December 2012.
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 WO05/41 and WO05/567, [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 a failure to comply.

Decision

Expedited procedure objection application WO11/924 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

President
Graeme Neate

The parties involved in this matter were Kevin Cosmos, representing the Yaburara and Mardudhunera people, and Western Australia, on one side, and FMG Pilbara Pty Ltd, on the other. The dispute centred around an application for an expedited procedure objection against a proposed grant of an exploration licence by FMG Pilbara over native title land. The case was heard in the Federal Court of Australia. The applicants sought to object to the grant of an exploration licence over their native title land, arguing that the process did not comply with the requirements of the Native Title Act 1993. They further contended that the proposed exploration would cause significant harm to their native title rights and interests.

The primary legal issue before the court was whether the applicants had complied with the procedural requirements for lodging an objection under the Native Title Act. Specifically, the court had to determine if the applicants had provided sufficient evidence to support their objections and whether they had complied with the directions given by the court in previous proceedings. The court also had to consider the balance of convenience and whether the proposed exploration would cause significant harm to the native title holders' rights and interests. The court examined the evidence presented by both parties and assessed whether the applicants had met the necessary procedural requirements.

The court found that the applicants had failed to comply with the directions given in previous proceedings, which required them to provide additional evidence to support their objections. The court held that the applicants' failure to comply with these directions was a fundamental procedural error that rendered their objection application invalid. Consequently, the court dismissed the objection application. The court further noted that even if the applicants had complied with the procedural requirements, the balance of convenience did not favour their objection, as the proposed exploration would not cause significant harm to their native title rights and interests. The court found that the exploration would be conducted in a manner that minimised the impact on the native title holders.

In summary, the court dismissed the objection application on the basis that the applicants had failed to comply with procedural directions and found that the balance of convenience did not favour the applicants. The court did not make any orders in relation to the proposed exploration licence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established