Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd

[2009] NNTTA 111

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2009] NNTTA 111 (24 September 2009)

Application Nos:    WO08/1055, WO08/1056, WO08/1057

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Wintawari Guruma Aboriginal Corporation (WD07/1) (native title party)

-and-

The State of Western Australia (Government party)

-and-

FMG Pilbara Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  24 September 2009

Catchwords:  Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases:Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WO07/510-512 [2008] NNTTA 17 (7 February 2008), Hon C J Sumner

Representative of the        

native title party:              Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

grantee party:  Mr Sukhpal Singh, FMG Pilbara Pty Ltd

Representatives of the      Mr Greg Abbott, Department of Mines and Petroleum

Government party:           Ms Claire Malavaux, Department of Mines and Petroleum  

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 19 September 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P47/1468, P47/1469 and P47/1470 (‘the proposed licences’) to FMG Pilbara Pty Ltd (‘the grantee party’) and included in the notices a statement that it considered that the grants attracted the expedited procedure.

2. On 30 September 2008 the Wintawari Guruma Aboriginal Corporation (‘the native title party’) made expedited procedure objection applications to the Tribunal (designated WO08/1055 for P47/1468, WO08/1056 for P47/1469 and WO08/1057 for P47/1470).

Relevant Facts

1. In each matter the Tribunal made directions on 9 December 2008 requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 11 May 2009. 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.

2. At the first status conference on 15 April 2009 the representative for the grantee party, Mr Sukhpal Singh, advised that it was unwilling to accept costs in the agreement proposed by the representative for the native title party, Mr Jerome Frewen. Mr Singh indicated that his client was unwilling to offer an alternative cost structure. Mr Frewen requested an extension of time for compliance with directions to seek instructions and prepare a revised agreement for the grantee party. Although the Government party opposed the request, the Hon C J Sumner, Deputy President, amended directions on 16 April 2009 in consideration of all parties’ submissions, with compliance by the native title party then required on or before 15 June 2009.

The Government and grantee parties complied with amended directions but neither contentions nor evidence were lodged by the native title party. At the Listing Hearing of 25 June 2009, at which all parties were represented, the native title party provided no satisfactory explanation for its failure to comply, nor did it make any application for an extension of time to comply. The Government party made application to dismiss each of the objections pursuant to s 148(b) of the Act on the basis that the native title party had failed to comply by the due date. The grantee party supported the application of the Government party and the native title party did not oppose it.

Conclusion

1. Deputy President Sumner has previously considered similar cases involving the same parties as in these present matters (for example, Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WO07/510-512 [2008] NNTTA 17 (7 February 2008). I conclude that dismissal of these objections is justified because the native title party has failed to comply with the Tribunal’s directions, despite having been informed of the possible consequences of such a failure. In any event, the native title party itself did not oppose the Government party’s application to dismiss.

Decision

1. Expedited procedure objection applications WO08/1055, WO08/1056 and WO08/1057 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Daniel O’Dea
Member
24 September 2009