Buurabalayji Thalanyji Aboriginal Corporation RNTBC and Squadron Resources Pty Ltd

[2019] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation RNTBC and Squadron Resources Pty Ltd [2019] NNTTA 14 (20 March 2019)

Application No:    WO2018/0235, WO2018/0236, WO2018/0237

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

- and -

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

Buurabalayji Thalanyji Aboriginal Corporation RNTBC (WCD2008/003)

(native title party)

- and -

Squadron Resources Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	20 March 2019

Catchwords:	Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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:	Mr Matthew Hansen
Representative of the grantee party:	Ms Yvette Collins

Representatives of the Government party: Ms Bethany Conway and Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 8 December 2017, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E08/2819, E08/2882 and E08/2941 to Squadron Resources Pty Ltd. The area of the proposed licences are overlapped by the Thalanyji determination (WCD2008/003), as represented by the Buurabalayji Thalanyji Aboriginal Corporation RNTBC (the Corporation). By including the expedited procedure statement in the public advertisement of the licences, the State has asserted the grants can be made without negotiation between the Corporation, the State and Squadron Resources Pty Ltd.

2. On 6 April 2018, the Corporation lodged objections with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licences. To answer the question of whether the licences can be granted in such an expedited way, I have been appointed to conduct the inquiry in these matters.

Should the inquiry proceed or should the matters be dismissed?

1. On 24 October 2018, 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 of the licences. These directions were sent to all parties that same day.  The State complied with their directions on 7 November 2018, and copied in the Tribunal and all parties to their documents and information. Neither contentions nor evidence was received from the Corporation by their due compliance date of 5 December 2018.

2. The State requested dismissal of the objection due to the Corporation’s non-compliance.  Following a request for an extension from the Corporation, as they were progressing agreement negotiations with Squadron Resources which may have led to the objections being dispensed with, I approved an extension to the directions with a revised compliance date.  The Corporation did not meet that compliance date and the State again requested dismissal.  The Tribunal emailed parties giving them the opportunity to comment on the States request.

3. On 11 February 2019, the Corporation wrote to the Tribunal advising negotiations had progressed and on production of a final version of executed copies of the agreement, the Corporation would ‘be in a position to lift the objection’.  A further extension was sought and granted once Squadron Resources confirmed the status of the matter.  Neither the State nor Squadron Resources Pty Ltd opposed the extension request, however, the State advised they would not support any further delays. The compliance date for the Corporation was extended to 11 March 2019.

4. On 12 March 2019 the Tribunal received a request from the State to dismiss the objection under s148(b) of the Native Title Act 1993 (Cth), as the Corporation had failed to provide contentions and evidence by their due date, and no reason for non-compliance, or request to extend this date, had been received. This request was copied to all parties. The Tribunal wrote to all parties on 12 March 2019 asking them to provide any response to the dismissal request received from the State by no later than the close of business 19 March 2019, for my consideration. No response was received from the Corporation or Squadron resources Pty Ltd.

5. In considering the dismissal request, 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.  In the circumstances, the Corporation has been given 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 licences can be granted in an expedited way because I have concluded the objections should be dismissed.

Decision

1. The objection applications against exploration licences E08/2819, E08/2882 and E08/2941 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
20 March 2019