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

[2012] NNTTA 47

NATIONAL NATIVE TITLE TRIBUNAL

The Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd/FMG Resources Ltd, [2012] NNTTA 47 (4 May 2012)

Applications No:       WO11/773, WO11/983

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

The Buurabalayji Thalanyji Aboriginal Corporation (WC99/45)

(native title party)

-and-

The State of Western Australia   (government party)

-and-

FMG Resources Ltd (WO11/773)
FMG Pilbara Pty Ltd (WO11/983)   (grantee parties)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:  John Sosso, Deputy President
Place:  Brisbane
Date of dismissal:            4 May 2012

Catchwords:   Native title – future acts – proposed grant of exploration licences - expedited procedure objection applications – failure to comply with directions –– objection applications dismissed.

Legislation:Native Title Act1993 (Cth), ss 29, 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:                   Gemma Phillips, 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) of its intention to grant certain exploration licences to the grantee parties specified therein 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 Tribunal.

Relevant facts

1. At the first preliminary conference for objection application WO11/773 on 30 August 2011, some issues were raised and the grantee parties’ representative advised they would need to seek instructions on how to proceed with the matter.

2. At a status conference for WO11/983 on 7 December 2011, it was agreed that, as all the representatives for WO11/983 and WO11/773 were the same, the expedited procedure objection applications could be dealt with at the same time.

3. At a status conference on 25 January 2012, parties advised that negotiations were progressing towards an agreement.

4. At the status conference on 8 February 2012, the grantee parties requested that both matters proceed to inquiry.  On this basis, the native title party requested a variation to Directions of six weeks for WO11/773 and a variation of two weeks for WO11/983.  This would align the directions for both matters.  The grantee parties supported the request but the government party did not support it. 

5. On 10 February 2012, Deputy President Hon C J Sumner advised that the request was not approved but directed that the dates for WO11/773 be aligned with the dates for WO11/933 with the native title party would comply for both matters on or before 19 March 2012.

6. At the Listing Hearing on 12 April 2012 the native title party requested a further variation to directions of twelve weeks. The government party requested that the objection applications be dismissed under s. 148(b) of the Act for failure by the native title party to comply with the Tribunal’s directions. The grantee party wished to remain neutral regarding the request.

7. The native title party has not, since that time, and despite the request of the government party, complied with the Directions.  In the circumstances it is appropriate that the expedited procedure objection applications be dismissed. 

8. In making the decision to dismiss these applications for non-compliance, I adopt the Tribunal’s findings 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, that the native title party has failed within a reasonable time to proceed with the applications and 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

1. Expedited procedure objection applications WO11/773 and WO11/983 are dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President

SCHEDULE  –  DETERMINATION [2012] NNTTA 47  (4 May 2012)

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Grantee Party	Native Title Party & Application No.	Date of Dismissal
E08/2261	27/06/2011	7/07/2012	WO11/773	FMG Resources Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation (WC99/45)	4/05/2012
E08/1816	22/07/2011	15/08/2011	WO11/983	FMG Pilbara Pty Ltd	The Buurabalayji Thalanyji Aboriginal Corporation (WC99/45)	4/05/2012