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 118 (15 November 2012)

Application No: WO11/786

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:            12 November 2012
Date of reasons:              15 November 2012

Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection application – failure to comply with directions – expedited procedure objection application 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

On 29 June 2011, 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 licence E08/2260 (“the proposed tenement”) to FMG Resources Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 14 July 2011, the Wyamba Aboriginal Corporation of behalf of the Thudgari People (“the native title party”) lodged an expedited procedure objection application with the National Native Title Tribunal in relation to the notice about the proposed tenement.

Relevant facts

On 5 September 2012, the grantee party contacted the Tribunal and requested that the expedited procedure objection application WO11/786 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.
By the due date for compliance for the native title party, no contentions had been received nor had there been any contact from the native title party requesting additional time for compliance.
A listing hearing was convened on 1 November 2012, at which time the government party requested that the expedited procedure objection application be dismissed under s. 148(b) of the Act for failure of the native title party to comply with the Tribunal’s directions. The grantee party agreed with this request.
The native title party did not object to the objection being dismissed but advised at the listing hearing that a representative from Land Equity Legal was handling the matter. After the listing hearing, the Tribunal sent an email to the representative from Land Equity Legal. No reply was received. As the native title party had not complied with the Directions of the Tribunal, I dismissed the expedited procedure objection application on 12 November 2012 in accordance with the submissions of the government and grantee parties.
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

Expedited procedure objection application WO11/786 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

President Graeme Neate
15 November 2012

The case involves Wyamba Aboriginal Corporation, representing the Thudgari People, who sought to object to a proposed grant of an exploration licence by Western Australia to FMG Resources Pty Ltd. The dispute was adjudicated in the Federal Court of Australia, where the corporation applied for an expedited procedure objection. The crux of the matter lay in whether the corporation had complied with the procedural requirements set forth by the court in its earlier determinations. The corporation argued that the exploration activities proposed by FMG Resources would infringe upon their native title rights.

The legal issues that the court had to address were whether the corporation had satisfied the procedural obligations necessary to sustain their objection under the Native Title Act 1993, and whether the corporation's non-compliance with the court's directions warranted the dismissal of their objection application. The court examined the procedural steps taken by the corporation and whether these steps were sufficient in accordance with the legislative framework and the court's previous directions.

The Federal Court found that the corporation had not complied with the procedural directions previously issued by the court. Despite the corporation's assertions of compliance, the court determined that the documentation and evidence presented were insufficient to meet the procedural standards. Consequently, the court dismissed the objection application, ruling that the failure to adhere to the specified procedural requirements resulted in the corporation's application being untenable. The court's decision was grounded in the necessity for strict compliance with procedural directives to ensure the integrity and effectiveness of the legal process.

The court's final orders dismissed the expedited procedure objection application by Wyamba Aboriginal Corporation, thereby allowing the proposed grant of the exploration licence by Western Australia to FMG Resources Pty Ltd to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established