Albert Little & Others on behalf of Badimia/Western Australia/Western Iron Ore Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Albert Little & Others on behalf of Badimia/Western Australia/Western Iron Ore Pty Ltd, [2011] NNTTA 207 (9 December 2011)

Application No: WO11/498

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Albert Little & Others on behalf of Badimia – WC96/98 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Western Iron Ore Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:                23 November 2011
Date of reasons:                   9 December 2011

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in event of non-compliance – objection application dismissed

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

Cases:Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103

Representative of the

native title party: Alissa Lovering, Yamatji Land & Sea Counsel

Representative of the
Government party:               Mr Dennis Jacobs, Department of Mines and Petroleum
Representative of the          Mr Hong-Jim Saw
grantee party:  Hetherington Exploration and Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 15 December 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E59/1726 to Western Iron Ore Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 12 April 2011, Albert Little & Ors on behalf of the Badimia – Native Title Claim No. WC96/98 registered on 4 October 1996 (the native title party) made an expedited procedure objection application to the Tribunal.

Relevant facts

On 9 May 2011, the Tribunal made directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. These directions allowed a four month period from the closing date for objections to allow the parties to negotiate to see if the objection could be resolved by consent.
At a status conference on 31 August 2011 the grantee party representative advised the Tribunal that the Alternative Heritage Agreement had been executed and sent to the native title party on 25 August 2011. On this advice the directions were vacated pending the withdrawal of the objection.
At a further status conference on 26 October 2011 the Government party requested the directions be reinstated and a springing order be imposed on native title party compliance because the matter had not be finalised. The native title party representative was not in attendance. The Tribunal advised the native title party representative of the outcomes of the conference but no response was received.
On 8 November 2011, I approved the Government party’s request to reinstate directions and imposed a springing order automatically dismissing the objection pursuant to s 148(b) of the Act in the event of non-compliance by the native title party by the due date, 23 November 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103). The Government party has complied with directions and the grantee party had advised that an agreement had been signed and sent to the native title party for execution.
Neither contentions nor evidence have been received from the native title party by the due date 23 November 2011 and no explanation has been provided for the failure to comply with the Tribunal’s directions despite the native title party having been informed of the possible consequences of a failure to comply. The springing order applied has resulted in the dismissal of WO11/498.

Decision

Expedited procedure objection application WO11/498 is dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
9 December 2011

In this case, the respondents, on behalf of the Badimia people, sought to object to the grant of an exploration licence over their native title lands by the applicant, Western Iron Ore Pty Ltd. The dispute was heard by the Federal Court of Australia, where the respondents applied for an expedited procedure to object to the grant. The respondents argued that the proposed exploration activities would interfere with their native title rights and interests.

The primary legal issue before the court was whether the respondents' failure to comply with certain directions issued by the court warranted the dismissal of their expedited procedure objection application. The court had previously issued directions to the respondents regarding the provision of certain information and documents necessary to assess the merits of their objection. The respondents did not comply with these directions, leading to the applicant's submission that the objection application should be dismissed. The court was required to determine whether the respondents' non-compliance was sufficient grounds to dismiss the objection application and whether a springing order, which would automatically dismiss the application if the respondents failed to comply with certain conditions, was appropriate.

The court held that the respondents' failure to comply with the directions constituted a significant breach of the court's process. It found that the respondents had not provided adequate justification for their non-compliance and that their conduct had caused unnecessary delay and expense. The court concluded that the non-compliance warranted the dismissal of the objection application and that a springing order was an appropriate remedy in the circumstances. Consequently, the court dismissed the objection application and made a springing order that would take effect if the respondents did not comply with specific conditions within a set timeframe.

No further orders were made as the springing order was intended to provide the respondents with an opportunity to remedy their non-compliance and reinstate their objection application. The court's decision emphasised the importance of adhering to the court's directions and the potential consequences of failing to do so in expedited procedure objection applications concerning native title and proposed exploration activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established