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 99 (26 July 2013)

Application No: WO2012/1174

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:            25 July 2013
Date of reasons:              26 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 5 September 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 E08/2403 (“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 5 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 5 June 2013, the grantee party requested at a status conference that the expedited procedure objection application WO2012/1174 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 15 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 19 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 23 July 2013 to submit any reasons as to why they believed the objection application WO2012/1174 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 25 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 WO2012/1174 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Helen Shurven
Member

In the Federal Court of Australia, the Buurabalayji Thalanyji Aboriginal Corporation sought to object to a proposed grant of an exploration licence by the State of Western Australia to FMG Pilbara Pty Ltd. The dispute centred on the potential impact of the exploration on the native title rights of the Aboriginal Corporation over the land in question. The court was tasked with deciding whether the Aboriginal Corporation's objection application under the Native Title Act 1993 (Cth) was valid, given that the corporation had failed to comply with certain procedural directions issued by the Court. The legal issues included the enforceability of procedural directions in objection applications under the Act, and the consequences of non-compliance with such directions. The Court held that the Aboriginal Corporation's failure to comply with the directions rendered their objection application invalid, and thus dismissed the application. The Court found that adherence to procedural directions was crucial for the proper administration of justice and the protection of the rights of all parties involved. The dismissal of the objection application did not, however, preclude the Aboriginal Corporation from pursuing other legal remedies available to them under the Native Title Act. As a result, the Court dismissed the objection application and ordered that the application be struck out.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established