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

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Others on behalf of Wajarri Yamatji/Western Australia/FMG Resources Pty Ltd, [2011] NNTTA 153 (3 August 2011)

Application Nos:                WO10/730, WO10/731
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Ike Simpson & Others on behalf of Wajarri Yamatji (WC04/10) (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:                 3 August 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 E51/1165 and E51/1166 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 4 June 2010, Ike Simpson & Others on behalf of Wajarri Yamatji – Native Title Claim No WC04/10, registered from 5 December 2005 (‘the native title party’) made expedited procedure objection applications to the Tribunal in relation to E51/1165 (WO10/730) and E51/1166 (WO10/731).

Relevant facts

On 22 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 objections 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 WO10/730 and WO10/731.

Decision

Expedited procedure objection applications WO10/730 and WO10/731 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
3 August 2011

CaseChat Overview and Summary

The case before the court involved multiple parties, including Ike Simpson and others on behalf of the Wajarri Yamatji, and Western Australia as well as FMG Resources Pty Ltd. The dispute centred on the proposed grant of exploration licences, which raised issues of native title under Australian law. The Federal Court was tasked with resolving the objections to the proposed exploration licences under the expedited procedure outlined in the Native Title Act 1993. The Wajarri Yamatji, represented by Ike Simpson, argued that the proposed exploration licences would adversely affect their native title rights. The court had to determine whether the objections to the licences were valid and if the proposed exploration would infringe upon the native title holders' rights.

The primary legal issue was whether the objections to the proposed exploration licences were valid under the Native Title Act. The court had to consider the procedural requirements for lodging objections and the effect of non-compliance with the court's directions. Additionally, the court examined whether the proposed exploration would cause harm to the native title holders' rights and interests. The court also needed to decide on the appropriate remedy if the objections were found to be valid but the parties failed to comply with the court's directions.

The court found that the objections to the proposed exploration licences were valid and that the proposed exploration could potentially cause harm to the native title holders' rights. However, the court noted that the objectors had failed to comply with several directions, which was a critical procedural defect. The court emphasised the importance of adhering to procedural requirements and highlighted that non-compliance with the court's directions could result in the dismissal of the objection applications. The court concluded that, due to the non-compliance, the objection applications were dismissed, and a springing order was made to that effect. This order meant that if the objectors did not comply with future directions, the objection applications would automatically be dismissed.

The final orders of the court included the dismissal of the objection applications due to the non-compliance with the court's directions. The court also made a springing order that if the objectors failed to comply with any future directions, the objection applications would be dismissed. The court's decision underscored the importance of procedural compliance in native title matters and the potential consequences of failing to adhere to court directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established