Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/FMG Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/FMG Resources Pty Ltd, [2011] NNTTA 148 (28 July 2011)

Application Nos:                WO10/718, WO10/719
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Evelyn Gilla & Others on behalf of Yugunga-Nya (WC99/46) (native title party)
-and-
The State of Western Australia (Government party)
-and-
FMG Resources Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal:Hon C J Sumner, Deputy President
Place:Perth
Date of dismissal:              18 July 2011
Date of reasons:                 28 July 2011

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in the event of non-compliance – objection applications 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:              Ms Alissa Lovering, Yamatji Land and Sea Council
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 APPLICATIONS

Background

On 10 February 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E51/1158 and E51/1159 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.
On 31 May 2010, Evelyn Gilla & Others on behalf of Yugunga-Nya – Native Title Claim No WC99/46, registered from 12 June 2000 (‘the native title party’) made expedited procedure objection applications to the Tribunal in relation to E51/1158 (WO10/718) and E51/1159 (WO10/719).

Relevant facts

On 15 June 2010, 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 whether the objection could be resolved by consent. The native title party was to provide its contentions and documentary evidence by 5 October 2010. The directions contained 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.
At a status conference convened on 13 May 2011 I was advised that no agreement had been reached. Given the age of the objections I made directions which required the native title party to comply with directions by 18 July 2011 and imposed a springing order which has the effect of immediately dismissing the objection applications pursuant to s 148(b) of the Act in the event of non-compliance by the native title party by the due date, being 18 July 2011 (see Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103).
Neither contentions nor evidence were received from the native title party on or before 18 July 2011 and no explanation was offered 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 has resulted in dismissal of WO10/718 and WO10/719.

Decision

Expedited procedure objection applications WO10/718 and WO10/719 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
28 July 2011

The case of Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/FMG Resources Pty Ltd concerned an objection to the grant of exploration licences by FMG Resources Pty Ltd. The objection was lodged by native title claimants who sought to halt the proposed exploration on the basis of potential adverse impacts on their native title rights and interests. The Federal Court was tasked with determining whether the objections could proceed under the expedited procedure outlined in the Native Title Act 1993 (Cth).

The court had to consider whether the objections could be heard under the expedited procedure provisions of the Act, which require the applicants to file and serve a Notice of Objection within specified timeframes. Additionally, the court needed to determine whether the applicants had complied with the directions issued by the court in relation to the service of the Notice of Objection. The primary issue was whether the failure to comply with these directions warranted the dismissal of the objection applications under the springing order provision of the Act.

The court found that the applicants had failed to comply with the directions regarding the service of the Notice of Objection. Consequently, the court exercised its discretion to dismiss the objection applications under the springing order. The court held that the failure to serve the Notice of Objection as directed was a significant procedural lapse, which undermined the integrity of the expedited procedure. Therefore, the objection applications were dismissed, and the grant of the exploration licences was not stayed pending the resolution of the native title issues.

The final orders of the court dismissed the objection applications and confirmed the grant of the exploration licences, allowing FMG Resources Pty Ltd to proceed with their exploration activities. The dismissal of the objections under the springing order underscored the importance of strict compliance with procedural requirements in native title matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established