Bunuba Dawangarri Aboriginal Corporation RNTBC v Baracus Pty Ltd

[2017] NNTTA 57

NATIONAL NATIVE TITLE TRIBUNAL

Bunuba Dawangarri Aboriginal Corporation RNTBC v Baracus Pty Ltd and Another [2017] NNTTA 57 (11 September 2017)

Application No: WO2017/0092

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

- and -

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

Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2012/006; WCD2015/009)

(native title party)

- and -

Baracus Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	11 September 2017

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed.
Legislation:	Native Title Act1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Representative of the native title party:	Ms Angela Booth, Kimberley Land Council Aboriginal Corporation

Representative of the grantee party: Mr Matthew Clohessy, Emerald Tenement Services

Representative of the Government party: Mr Michael McMahon, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 30 September 2016, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E04/2462 to Baracus Pty Ltd (Baracus) without requiring Baracus or the State to negotiate with the Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba RNTBC). The Bunuba RNTBC holds determined native title rights and interests on behalf of the Bunuba People, whose native title determinations (WCD2012/006 and WCD2015/009) cumulatively overlap the licence by 100 per cent.

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted that the grant can be made without such negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Bunuba Aboriginal Corporation, the State, and Baracus.

3. On 30 January 2017, the Bunuba RNTBC lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 6 July 2017, I made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant. The Bunuba RNTBC was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 16 August 2017.

2. The Bunuba RNTBC did not provide contentions or evidence, or make any request for further time to provide the requisite documents, by 16 August 2017. On 18 August 2017, the State wrote to the Tribunal and all parties requesting the objection be dismissed on the basis that the Bunuba RNTBC had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 21 August 2017, the Tribunal wrote to the representatives of the Bunuba RNTBC and Baracus, asking them to respond to the State’s request to dismiss the objection. Parties were given until 28 August 2017 to respond.  The Tribunal received no further communication from any party concerning the request for dismissal.

4. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

5. In the circumstances, the Bunuba RNTBC had sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E04/2462 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
11 September 2017