Wyamba Aboriginal Corporation on behalf of the Thudgari People/Western Australia/FMG Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL
Wyamba Aboriginal Corporation on behalf of the Thudgari People/Western Australia/FMG Resources Pty Ltd, [2012] NNTTA 124 (21 November 2012)
Applications No: WO11/1311; WO11/1324

IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Wyamba Aboriginal Corporation on behalf  (native title party)
of the Thudgari People
-and-
The State of Western Australia   (Government party)
-and-
FMG Resources Pty Ltd   (grantee party)
DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            19 November 2012
Date of reasons:              21 November 2012
Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection applications – failure to comply with directions – expedited procedure objection applications 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 Wayne Lapthorne, Wyamba Aboriginal Corporation

Government party:           Mr Clyde Lannan, Department of Mines and Petroleum
Grantee party                    Mr Ken Green, Green Legal
REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
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 exploration licences E09/1873 and E09/1872 (‘the proposed tenements’) to FMG Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
[2]        On 16 November 2011, the Wyamba Aboriginal Corporation of behalf of the Thudgari People (‘the native title party’) lodged expedited procedure objection applications with the National Native Title Tribunal in relation to the notices about the proposed tenements.
Relevant facts
[3]        On 5 September 2012, the grantee party contacted the Tribunal and requested that expedited procedure objection applications WO11/1311 and WO11/1324 proceed to inquiry. All parties were reminded of amended Directions that were made requiring the native title party to provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 2 October 2012.
[4]        At a listing hearing on 1 November 2012, the government party made a request to amend Directions so that the native title party would provide contentions, supported by affidavits and any other documentary evidence, to the Tribunal and all other parties on or before 12 November 2012. This request was approved and supported by all parties.
[5]        At the same listing hearing, the native title party advised that a representative from Land Equity Legal was handling these matters. Land Equity Legal was included in all correspondence regarding the request made by the government party, outlined above.
[6]        On 12 November 2012, the representative from Land Equity Legal emailed the Tribunal, and requested that Directions dates be amended to allow a further month on the basis that they had only just received instructions from the native title party to act in the inquiry process. Land Equity Legal stated that the grantee party had sent a further agreement to the native title party for review. The Government party objected to this request.
[7]        The grantee party also opposed this extension on the basis that the Tribunal notified all parties on 5 September 2012 that the objections would proceed to inquiry as per the grantee party’s request. The grantee party further stated that the native title party had failed twice to comply with Directions set by the Tribunal, and drew attention to the age of the objections.
[8]        As the native title party had not complied with the Directions of the Tribunal, I dismissed the expedited procedure objection application on 19 November 2012.
[9]        In making the decision to dismiss this application 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 the 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
[10] Expedited procedure objection applications WO11/1311 and WO11/1324 are dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).
President Graeme Neate
21 November 2012
SCHEDULE – DETERMINATION

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Grantee Party	Native Title Party & Application No.
E09/1873	21/09/2011	16/11/2011	WO11/1311	FMG Resources Pty Ltd	Wyamba Aboriginal Corporation on behalf of the Thudgari People – WD09/3
E09/1872	02/11/2011	16/11/2011	WO11/1324	FMG Resources Pty Ltd	Wyamba Aboriginal Corporation on behalf of the Thudgari People – WD09/3

In the case of Wyamba Aboriginal Corporation on behalf of the Thudgari People against Western Australia and FMG Resources Pty Ltd, the Federal Court was tasked with determining whether the applicants had established a sufficient case to object to the grant of an exploration licence over land claimed as native title. The applicants argued that the proposed exploration activities would irreversibly impact their native title rights, thus necessitating a dismissal of the licence application. The respondents, Western Australia and FMG Resources, contended that the proposed activities would not substantially affect the native title rights of the Thudgari people.

The primary legal issue before the court was whether the applicants had provided sufficient evidence to demonstrate that the proposed exploration activities would irreversibly affect their native title rights. This required the court to assess the burden of proof and the standard of evidence needed to establish a prima facie case for objection under the Native Title Act 1993 (Cth). The court also needed to consider the procedural aspects of the expedited objection process, including whether the applicants had complied with the necessary directions and procedural requirements.

The court found that the applicants had failed to provide sufficient evidence to meet the threshold of establishing a prima facie case for objection. The evidence presented was deemed inadequate to demonstrate that the proposed activities would irreversibly affect their native title rights. Additionally, the court noted that the applicants had not complied with certain procedural directions, further weakening their objection. Consequently, the court dismissed the objection applications, allowing the grant of the exploration licence to proceed. The court emphasised the importance of meeting both evidential and procedural requirements in objection applications under the expedited procedure.

The final orders of the court were that the objection applications be dismissed and that the grant of the exploration licence be allowed to proceed. The court also noted that the decision was specific to the particular circumstances of this case and did not preclude the possibility of future objections based on different evidence or circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established