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

[2008] NNTTA 32

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2008] NNTTA 32 (14 March 2008)

Application Nos:     WO07/876, WO07/877, WO07/878, WO07/879, WO07/880, WO07/881

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 (native title party)

-and-

The State of Western Australia (Government party)

-and-

FMG Pilbara Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:              7 March 2008
Date of reasons:                 14 March 2008

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 Act 1993 (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

Representatives of the       Mr Jerome Frewen, Desert Management Pty Ltd

native title party:               Ms Richardene Dangor, Desert Management Pty Ltd

Representative of the

grantee party:  Mr Ken Green, Green Legal Pty Ltd

Representative of the

Government party:           Mr Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 22 August 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P47/1407, P47/1408, P47/1409, P47/1410, P47/1411 and P47/1412 (‘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 2 September 2007 the Wintawari Guruma Aboriginal Corporation (‘the native title party’) made expedited procedure objection applications to the Tribunal (designated WO07/876 for P47/1407, WO07/877 for P47/1408, WO07/878 for P47/1409, WO07/879 for P47/1410, WO07/880 for P47/1411 and WO07/881 for P47/1412).

Relevant Facts

1. In each matter the Tribunal made directions on 5 December 2007 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 21 April 2008. 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. During the first preliminary conference convened on 18 December 2007, the representative for the grantee party, Mr Ken Green, confirmed that it wished to proceed immediately to inquiry and requested that dates for compliance with directions be brought forward to enable this to occur as expeditiously as possible as per the correspondence received from Mr Ken Green on 13 December 2007.  The native title party objected to the request.  The representative for the native title party, Mr Jerome Frewen, advised that law business and the wet season would preclude his ability to gain access to the relevant people to seek instructions in the immediate future. Based on a consideration of parties’ submissions made at the preliminary conference, I amended directions on 19 December 2007 in accordance with the Tribunal’s usual practice in situations such as this where it is clear from the outset that a negotiated outcome would not be possible.  I was satisfied that adequate time for contentions and evidence to be prepared would be available if native title party compliance was required on or before 25 February 2008.  Parties were also advised that they had liberty to apply for a variation.

3. The Government party has complied with amended directions. On 4 March 2008 Mr Green submitted an application to dismiss each of the objections pursuant to s 148(b) of the Native Title Act 1993 on the basis that the native title party had failed to comply by the amended date. This submission was provided to all parties and to the Tribunal. On the same date the Tribunal sought submissions from all parties on whether the objection applications should be dismissed. The Government party responded supporting the request by the grantee party but no response has been forthcoming from the native title party.

Conclusion

1. I have recently considered similar cases involving the same parties as in these present matters (Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, NNTT WO07/510-512 [2008] NNTTA 17 (7 February 2008)), and conclude for the same reasons given in those matters (at [7]) that dismissal of the objections is justified because the native title party has failed to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.

Decision

1. Expedited procedure objection applications WO07/876 to WO07/881 inclusive are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
14 March 2008