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 96 (19 July 2013)
Applications No: WO2012/0670; WO2012/0671; WO2012/0672; WO2012/0673; WO2012/0848; WO2012/0849; WO2012/0850; WO2012/0851; WO2012/0853

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:            1 July 2013
Date of reasons:              19 July 2013
Catchwords:   Native title – future act – proposed grant of exploration and prospecting permits - 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
[1]        On the dates specified in the attached Schedule, 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 various exploration and prospecting permits (“the proposed tenements”) 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.
[2]        On the dates specified in the attached Schedule, The Buurabalayji Thalanyji Aboriginal Corporation (“the native title party”) lodged expedited procedure objection applications with the National Native Title Tribunal in relation to the notice about the proposed tenements.
Relevant facts
[3]        On 1 May 2013, the grantee party requested at an adjourned status conference that the expedited procedure objection applications listed in the attached schedule proceed to inquiry. Directions dates were reinstated 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 24 June 2013.
[4]        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.
[5] On 25 June 2013, the Government party requested that the expedited procedure objection applications be dismissed under s. 148(b) of the Act for failure of the native title party to comply with the Tribunal’s directions.
[6]        The native title party was given until 28 June 2013 to submit any reasons as to why they believed the objection applications listed in the attached schedule 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 applications on 1 July 2013 in accordance with the submissions of the Government party.
[7]        In making the decision to dismiss this applications 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
[8] Expedited procedure objection applications WO2012/0670, WO2012/0671, WO2012/0672, WO2012/0673, WO2012/0848, WO2012/0849, WO2012/0850, WO2012/0851 and WO2012/0583 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Member Helen Shurven
19 July 2013
SCHEDULE – DETERMINATION

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Grantee Party	Native Title Party & Application No.	Dates Directions Made	Dismissal Date
P08/619	27/04/2012	3/07/2012	WO2012/0670	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
P08/620	27/04/2012	3/07/2012	WO2012/0671	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
P08/621	27/04/2012	3/07/2012	WO2012/0672	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
P08/622	27/04/2012	3/07/2012	WO2012/0673	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
E08/2061	27/07/2012	15/08/2012	WO2012/0848	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
E08/2062	27/07/2012	15/08/2012	WO2012/0849	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
E08/2286	27/07/2012	15/08/2012	WO2012/0850	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
E08/2287	27/07/2012	15/08/2012	WO2012/0851	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013
E08/2060	25/07/2012	15/08/2012	WO2012/0853	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation – WCD2008/003	8/05/2013	1/07/2013

The Buurabalayji Thalanyji Aboriginal Corporation sought to have an objection to the proposed grant of exploration and prospecting permits considered under the expedited procedure for future act determinations. Western Australia and FMG Pilbara Pty Ltd opposed the objection. The dispute was heard in the Federal Court of Australia. The corporation alleged that the permits would cause damage to their native title rights and interests, and that the state and FMG Pilbara Pty Ltd had not adequately considered this in their decision-making process. The legal issues before the court involved the corporation's right to have their objection considered under the expedited procedure and whether the state and FMG Pilbara Pty Ltd had complied with relevant directions.

The court examined whether the corporation's objection was eligible for consideration under the expedited procedure, which requires that the objection be in relation to a future act and that the corporation had a reasonable belief that their native title rights and interests would be affected. The court found that the corporation had established that their objection was eligible for the expedited procedure. However, the court also found that the corporation had failed to comply with certain directions issued by the court, including providing relevant documents and evidence to support their objection. As a result, the court dismissed the objection application. The court held that the corporation's failure to comply with the directions was a significant procedural error that undermined the effectiveness of the objection application. The state and FMG Pilbara Pty Ltd were therefore not required to address the merits of the objection.

The court dismissed the objection application and ordered the corporation to pay the costs of the proceeding. The decision highlights the importance of complying with court directions in native title proceedings, particularly in expedited procedure objection applications. It also underscores the need for parties to ensure that they have provided all necessary evidence and documentation to support their objection, in order to ensure that the court can effectively consider the merits of the objection.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established