Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd

[2012] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2012] NNTTA 20 (2 March 2012)

Application No:                   WO10/1712

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

-and-

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

Buurabalayji Thalanyji Aboriginal Corporation – WC99/45 (native title party)

-and- 

The State of Western Australia (Government party)

-and-

FMG Pilbara Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:                 27 February 2012
Date of reasons:                   2 March 2012

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:                 Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the          

Government party:              Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the          

grantee party:  Ms Denice Johns, Fortescue Metals Group Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 17 November 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E08/1814 to FMG Pilbara Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 29 November 2010, Buurabalayji Thalanyji Aboriginal Corporation – Native Title Claim No. WC99/45 registered on 7 February 2000 (the native title party) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. On 7 February 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.

2. At a status conference on 22 February 2011 the grantee party representative advised the Tribunal that they would like to review the Alternative Heritage Agreement (AHA) a copy of which was sent by the native title party to the grantee party that day.

3. Between March 2011 and September 2011 the Tribunal was advised that parties were negotiating the terms of the AHA.  The directions were amended three times to allow time for parties to progress towards agreement.

4. At a further status conference on 5 October 2011 the native title party requested a further extension to compliance aligning dates with another matter (WO11/773) that had compliance dates in February 2012. This request was supported by the grantee party but not by the Government party, who addressed concern over the age of the matter. On 10 October 2011, I approved the extension to 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, 27 February 2012 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).

5. Neither contentions nor evidence have been received from the native title party by the due date 27 February 2012 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 WO10/1712.

Decision

1. Expedited procedure objection application WO10/1712 is dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
2 March 2012