Lola Young & Ors on behalf of Innawonga/Western Australia/FMG Pilbara Pty Ltd

[2011] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Lola Young & Ors on behalf of Innawonga/Western Australia/FMG Pilbara Pty Ltd, [2011] NNTTA 20 (23 February 2011)

Application No:                 WO10/1044

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

-and-

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

Lola Young & Ors on behalf of Innawonga – WC98/69 (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:                 23 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

Representative 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 7 April 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2522 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 8 August 2010, Lola Young & Ors on behalf of Innawonga – Native Title Claim No. WC98/69, registered from 29 September 1998 (‘the native title party’) made an expedited procedure objection application to the Tribunal. 

Relevant facts

1. The Tribunal made directions on 16 August 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. During a preliminary conference on 31 August 2010 parties advised they were negotiating the terms of an Alternative Heritage Agreement (‘AHA’).

3. On 14 October 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 by FMG. Direction dates were amended at the request of the native title 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 29 November 2010 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

4. The direction dates were amended once further, 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 WO10/1044 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
23 February 2011