Ike Simpson & Others on behalf of Wajarri Yamatji/Western Australia/FMG Pilbara Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Others on behalf of Wajarri Yamatji/Western Australia/FMG Pilbara Pty Ltd, [2011] NNTTA 151 (3 August 2011)

Application No:                 WO09/954
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Ike Simpson & Others on behalf of Wajarri Yamatji (WC04/10) (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:              18 July 2011
Date of reasons:                 3 August 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 the 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:              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 APPLICATION

Background

On 12 August 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2342 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.
On 11 December 2009, Ike Simpson & Others on behalf of Wajarri Yamatji – Native Title Claim No WC04/10, registered from 5 December 2005 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

On 11 January 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 13 April 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 objection 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 application 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 WO09/954.

Decision

Expedited procedure objection applications WO09/954 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
3 August 2011

The case involved a group of Wajarri Yamatji native title claimants and Western Australia, as well as FMG Pilbara Pty Ltd, a mining company seeking an exploration licence. The claimants objected to the proposed grant of the exploration licence under the Native Title Act 1993, arguing that it would affect their native title rights. They applied for an expedited procedure to address the objection, which was dismissed by the court for failure to comply with procedural directions. The court considered the implications of non-compliance with the directions and the effect of the springing order in the event of non-compliance. The primary legal issue was whether the claimants' failure to comply with the court's procedural directions warranted the dismissal of their objection application. The court found that the claimants had not followed the necessary procedural steps and had not provided the required evidence to support their objection. This non-compliance resulted in the dismissal of the objection application. The court emphasised the importance of adhering to procedural requirements in such matters and noted that the springing order was intended to ensure compliance. Ultimately, the objection application was dismissed due to the claimants' failure to comply with the court's directions. The court's decision was based on the principle that procedural fairness and adherence to court directions are critical in the administration of justice. The claimants' inability to comply with the procedural requirements led to the dismissal of their objection application. The court's decision underscored the necessity for parties to strictly follow procedural rules in expedited objection applications under the Native Title Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established