The Buurabalayji Thalanyji Aboriginal Corporation/ Western Australia/ FMG Pilbara Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/ Western Australia/ FMG Pilbara Pty Ltd
[2013] NNTTA 103 (31 July 2013)

Application No: WO2012/1211

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

-and-

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

The Buurabalayji Thalanyji Aboriginal Corporation - (native title party)
(WCD2008/003)

-and-

The State of Western Australia (Government party)

-and-

FMG Pilbara Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date of dismissal:            29 July 2013
Date of reasons:              31 July 2013

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), s 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: Mr Jerome Frewen, Desert Management Pty Ltd

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

Grantee party Ms Nerolie Nikolic, Fortescue Metals Group Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

On 14 November 2012, 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 E08/1548 (“the proposed tenement”) 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.
On 21 November 2012, The Buurabalayji Thalanyji Aboriginal Corporation (“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.

Relevant facts

On 12 June 2013, the grantee party requested at a status conference that the expedited procedure objection application WO2012/1211 proceed to inquiry. Directions dates were set for which the native title party was required to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 22 July 2013.
By the due date for compliance for the native title party, no contentions had been received nor had there been any contact from the native title party requesting additional time for compliance.
On 23 July 2013, the grantee party requested that the expedited procedure objection application be dismissed under s 148(b) of the Act for failure of the native title party to comply with the Tribunal’s directions.
The native title party was given until 26 July 2013 to submit any reasons as to why they believed the objection application WO2012/1211 should not be dismissed. No reply was received. As the native title party had not complied with the Directions of the Tribunal, I dismissed the expedited procedure objection application on 29 July 2013 in accordance with the submissions of the grantee party.
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 an 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 WO2012/1211 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Helen Shurven
Member

The Buurabalayji Thalanyji Aboriginal Corporation lodged an objection with the National Native Title Tribunal against the State of Western Australia’s intention to grant an exploration licence to FMG Pilbara Pty Ltd, claiming that the grant attracted the expedited procedure under the Native Title Act 1993. The dispute centred on whether the corporation's objection was valid and whether the proceedings should be expedited. The tribunal was tasked with determining whether to dismiss the objection application due to non-compliance with procedural directions.

The central legal issue was whether the expedited procedure objection application should be dismissed for the native title party's failure to comply with the Tribunal’s directions. The tribunal had to consider the precedent set in Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, where similar procedural failures led to dismissal. The tribunal also had to assess the impact of the native title party's non-compliance on the administrative efficiency of the Tribunal’s processes.

In dismissing the objection application, the tribunal adopted the approach from the cited precedent, finding that the native title party had not complied with the Tribunal’s directions to provide contentions and documentary evidence by the specified deadline. The tribunal noted that despite being informed of the possible consequences of non-compliance, the native title party had not submitted any contentions or requested additional time. Consequently, the tribunal dismissed the objection application under section 148(b) of the Native Title Act 1993.

The tribunal's final order was the dismissal of the expedited procedure objection application WO2012/1211 pursuant to section 148(b) of the Native Title Act 1993. This decision underscores the importance of adhering to procedural requirements and the tribunal's commitment to maintaining the efficiency of its processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established