Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Auricup (Rothsay) Pty Ltd

[2019] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Auricup (Rothsay) Pty Ltd [2019] NNTTA 35 (7 June 2019)

Application No: WO2018/0528

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

- and -

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

Buurabalayji Thalanyji Aboriginal Corporation RNTBC (WCD2008/003)

(native title party)

- and -

Auricup (Rothsay) Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Helen Shurven
Place:	Perth
Date:	7 June 2019

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 Act 1993 (Cth) ss 29, 31, 32, 148

Native Title Amendment Bill 1997 [No. 2]

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia)

Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representatives(s) of the native title party:

Mr Matthew Hansen
Buurabalyji Thalanyji Aboriginal Corporation RNTBC

Representative(s) of the grantee party: Mr Eamon Cornelius
Western Tenement Services

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

BACKGROUND

1. On 29 March 2018, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant exploration licence E08/2847 (the proposed licence) to Auricup (Rothsay) Pty Ltd (the proposed grantee). In the notice, the State asserted the proposed grant attracted the expedited procedure. As outlined in s 237 of the Act, the expedited procedure applies where the grant of a licence is not likely to:

   ·interfere directly with community or social activities carried on by members of native title claims or determined areas;

   ·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or

   ·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

2. The Thalanyji determination (WCD2008/003) overlaps 99.55 per cent of the proposed licence. Buurabalayji Thalanyji Aboriginal Corporation RNTBC (Thalanyji) lodged an objection to the assertion of the expedited procedure, on behalf of the Thalanyji people.

3. 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 proposed licence. These directions were sent to all parties, including Thalanyji as the objector, and in that communication, parties were asked to note that:

   if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application…

4. The State complied with their direction’s, copying in all parties. Thalanyji’s compliance date was 10 May 2019. They have not complied with that direction. On 13 May 2019, the State wrote to the Tribunal, coping in all parties, seeking a dismissal of the objection application pursuant to s 148(b) of the Act. Section 148 provides:

   The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   (a)the Tribunal is satisfied that it is not entitled to deal with the application; or

   (b)the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

5. On 13 May 2019, the Tribunal notified all parties, as follows:

   The Tribunal has received a request from the government party to dismiss the abovementioned objection under s 148(b) of the Native Title Act 1993 (Cth) on the basis that the native title party has failed to provide contentions and evidence by their due date of 10 May 2019, and no request to extend this date has been received.

   If parties wish to make comment on this request, please do so by no later than COB Tuesday, 21 May 2019. This request and any responses will then be put to Member Shurven for her consideration and parties will be advised of the outcome in due course.

6. On 14 May 2019, the Auricup (Rothsay) Pty Ltd representative emailed the Tribunal and all parties, supporting the State’s request for dismissal. There has been no response from the native title party’s representative. I am satisfied Thalanyji through their representative have had a reasonable time in which to comply with Tribunal directions.

7. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. Once an objection application is made, it is incumbent on the objector to proceed with the application, and to communicate with the Tribunal and all parties about the application. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia, the Tribunal outlined (at page 6):

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

8. Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):

   27.10b    Replacement item 40 inserts new section 148 which states that the Tribunal has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with Tribunal directions. 

   27.10c    …These limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…

9. As at the date of this determination, no response has been received from Thalanyji as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance. In the circumstances, Thalanyji have 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 objection should be dismissed.

Decision

1. The objection application against E08/2847 is dismissed pursuant to s 148(b) of the Act.

Helen Shurven
Member
7 June 2019