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

[2008] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2008] NNTTA 17 (7 February 2008)

Application Nos:                WO07/510, WO07/511, WO07/512

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
Place:  Perth
Date of dismissal:              31 January 2008

Date of reasons:                 7 February 2008

Catchwords:  Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with Directions – dismissing expedited procedure objection applications in event of non-compliance – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b)

Cases:Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67

Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265

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 APPLICATIONS

Background

1. On 28 June 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 P47/1306, P47/1307 and P47/1308 (‘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 27 June 2007 the Wintawari Guruma Aboriginal Corporation (‘the native title party’) made expedited procedure objection applications to the Tribunal (designated WO07/510 for P47/1306, WO07/511 for P47/1307 and WO07/512 for P47/1308).

Relevant Facts

1. In each matter the Tribunal made directions on 30 October 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 25 February 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 13 November 2007, the representative for the grantee party, Mr Ken Green, advised 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.  The native title party objected to the request.  At a Directions Hearing on 30 November 2007, Mr Green clarified that negotiations had broken down between the grantee party and the native title party and that the native title party had been aware of this since at least 13 November 2007.  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.  Mr Frewen was not able to provide specific details as to the nature of these difficulties or the period during which law business would occur but I agreed to allow a reasonable time for the native title party to comply and amended directions, including that the native title party file its materials for the inquiry on or before 18 January 2008.

1. The Government party complied with directions and the grantee party has adopted the Government party’s contentions. To date, no contentions or evidence have been received from the native title party and by email dated 20 January 2008, the grantee party sought dismissal of the objections pursuant to s 148(b) of the Act on the basis of non-compliance with a direction of the Tribunal. On 21 January 2008, by way of response to the grantee party’s email correspondence, Mr Frewen advised by email that his clients were still engaged in law business and that as a consequence he had not been able to seek instructions. He made no specific application to amend dates for compliance with directions made on 30 November 2007, although he alluded to the possibility that a Mr Bower (a legal practitioner representing the native title party) may also add further reasons why there should be a ‘stay of hand’ in these matters. No communication was made to the Tribunal by Mr Bower at any stage of these proceedings.

2. On 23 January 2008, parties were advised that the Tribunal was satisfied that the native title party had failed to comply with the Tribunal’s directions and sought submissions from all parties on whether the objection application should be dismissed.  This was done on the basis that whether to dismiss an objection is a matter of discretion based on all the circumstances of the case.  The Government and grantee parties each provided submissions confirming their application for dismissal but no further submissions were forthcoming from the native title party.

Conclusion

1. 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 afforded additional time to do so and having been informed of the possible consequences of a failure to comply.  In making this decision, I have applied the principles set out in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) (Member Sosso) and particularly that the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application (see also Ruby Saltmere (Indjilandji/Dithannoi)/ Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso citing the Federal Court in Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67 (at [85]) (per Nicholson J) and Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278 (per Lee J)).

Decision

1. The expedited procedure objection applications are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
7 February 2008