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 154 (3 August 2011)

Application Nos:                WO10/1544, WO10/1545, WO10/1546
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 28 July 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E52/1945, E52/1946 and E52/1947 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 20 November 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 E52/1945 (WO10/1544), E52/1946 (WO10/1545) and E52/1947 (WO10/1546).

Relevant facts

On 11 January 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 whether the objections could be resolved by consent. The native title party was to provide its contentions and documentary evidence by 28 March 2011. 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 WO10/1544, WO10/1545 and WO10/1546.

Decision

Expedited procedure objection applications WO10/1544, WO10/1545 and WO10/1546 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 before the court involved Wajarri Yamatji, represented by Ike Simpson and others, who sought to object to the proposed grant of exploration licences by FMG Resources Pty Ltd in Western Australia. The dispute centred on the potential impact of the exploration on native title rights and whether the objections were appropriately lodged under the expedited procedure. The matter was heard in the Federal Court of Australia, where the court was tasked with determining the validity of the objection applications and whether the applicants had complied with the procedural requirements.

The primary legal issues revolved around the procedural aspects of the objection applications, specifically whether the applicants had adhered to the directions set by the court. A significant point of contention was the imposition of a springing order, which would automatically dismiss the objection applications if the applicants failed to comply with the directions. The court had to assess whether the applicants had indeed failed to comply and, if so, whether the dismissal of the objections was justified.

The court found that the applicants had not complied with the directions, leading to the activation of the springing order. The applicants had failed to meet specific procedural requirements, such as providing necessary documentation and information. The court emphasised the importance of following procedural directives in such cases, especially when dealing with native title claims and the rights of Indigenous groups. Consequently, the court dismissed the objection applications, highlighting that procedural compliance is critical in legal proceedings, particularly in matters involving native title and significant industrial activities.

As a result of the dismissal, the objection applications were effectively terminated, and the proposed grant of exploration licences could proceed. The court's decision underscored the necessity for strict adherence to procedural rules and the potential consequences of failing to comply with court directions. This ruling serves as a reminder of the importance of procedural compliance in complex legal disputes, particularly those involving native title and industrial activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established