Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/FMG Pilbara Pty Ltd

[2011] NNTTA 24

NATIONAL NATIVE TITLE TRIBUNAL

Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/FMG Pilbara Pty Ltd, [2011] NNTTA 24 (24 February 2011)

Application Nos:                WO09/859, WO10/192, WO10/196, WO10/197

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Nicholas Cooke & Anor on behalf of Innawonga and Bunjima – WC96/61 (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:              10 January 2011
Date of reasons:                 24 February 2011

Catchwords:  Native title – future acts – 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

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 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 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, Nicholas Cooke & Anor on behalf of Innawonga and Bunjima – Native Title Claim No. WC96/61, registered from 4 June 1996 (‘the native title party’) made expedited procedure objection applications to the Tribunal. 

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 WO09/859

   ·22 February 2010 in relation to WO10/192

   ·9 March 2010 in relation to WO10/196 and WO10/197

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 WO09/859, WO10/192 and WO10/196 and WO10/197 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.	Date of Govt. Party Notification (s29 Notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party	Native Title Party	Date Directions Made	Dismissal Date by operation of the Springing Order
E47/1921	15/7/2009	WO09/859	16/11/2009	FMG Pilbara Pty Ltd	Nicholas Cooke & Anor on behalf of Innawonga and Bunjima	29/11/2010	10/01/2011
E47/1808	7/10/2009	WO10/192	8/2/2010	FMG Pilbara Pty Ltd	Nicholas Cooke & Anor on behalf of Innawonga and Bunjima	29/11/2010	10/01/2011
P47/1513	7/10/2009	WO10/196	9/2/2010	FMG Pilbara Pty Ltd	Nicholas Cooke & Anor on behalf of Innawonga and Bunjima	29/11/2010	10/01/2011
P47/1514	7/10/2009	WO10/197	9/2/2010	FMG Pilbara Pty Ltd	Nicholas Cooke & Anor on behalf of Innawonga and Bunjima	29/11/2010	10/01/2011