Buurabalayji Thalanyji Aboriginal Corporation v North West Stone Pty Ltd & Another

[2019] NNTTA 66

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation v North West Stone Pty Ltd & Another (2019) NNTTA 66 (29 August 2019)

Application No:

WO2018/0456

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

(native title party)

- and -

North West Stone Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Helen Shurven, Member

Place:

Perth

Date:

29 August 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, 148, 237

Cases:

Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 (Thalanyji v Western Australia)

Representatives(s) of the native title party:

Matthew Hansen, Buurabalayji Thalanyji Aboriginal Corporation

Representative(s) of the grantee party:

Steve Millward, Millward Surveys Pty Ltd

Representatives(s) of the Government party:

Matthew Smith, Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

[1] On 16 March 2018, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) that it intended to grant exploration licence E08/2978 (the licence) to North West Stone Pty Ltd (North West Stone). In the notice, the State asserted the proposed grant of the licence attracted the expedited procedure. As outlined in s 237 of the Act, the expedited procedure applies where the grant of the licence is not likely to, in summary:

(a)       interfere directly with the native title holders' community or social activities;

(b)       interfere with areas or sites of particular significance, in accordance with the native title holders traditions;

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

[2]       The licence is approximately 6.34 square kilometres in size and is located approximately 88 kilometres south-east of Onslow. The native title determination for the Thalanyji People (see Thalanyji v Western Australia) wholly overlaps the area covered by the licence. The Buurabalayji Thalanyji Aboriginal Corporation (BTAC) holds non-exclusive native title rights and interests on behalf of the Thalanyji People in relation to the land and waters of the licence.  BTAC lodged an objection application with the National Native Title Tribunal (the Tribunal) on 25 June 2018 in response to the State's assertion that the expedited procedure applies to the grant of the licence.

[3]       I have been appointed to decide whether the expedited procedure applies to the proposed grant of the licence.

The proceedings to date

[4]       On 18 March 2019, 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 proposed grant. Included in those directions was that BTAC provide a statement of contentions and supporting documents on or before 29 April 2019.

[5]       I amended these directions twice at the request of BTAC – the second amendment was made on 21 July 2019 and extended BTAC’s compliance date to 9 August 2019. The BTAC requests to extend compliance timeframes were made on the basis that BTAC and North West Stone were negotiating a heritage agreement, the execution of which would see the withdrawal of the objection.  The second extension request was granted on the basis of information from BTAC which indicated there was ‘one final item’ for BTAC and North West Stone to settle, and no objection from North West Stone to the extension. 

[6]       Both extension requests were granted following the State requesting dismissal of the objection, due to lack of compliance from BTAC – each request for extension was only made after the compliance date had passed.  The Tribunal reminds parties that requests for extension should be made well before the compliance date, and with a reasonable commentary about the need for any extension.

[7]       The Tribunal wrote to BTAC’s representative, copying in all parties, on 12 August 2019 requesting that he advise the Tribunal as to whether he intended to submit any contentions or evidence in support of BTAC’s objection. No response was forthcoming and on 19 August 2019, the Tribunal wrote to BTAC, copying in all parties, stating:

The native title party has until 23 August 2019 to lodge their compliance documents.  If no compliance is forthcoming, or no reasonable request for extension, the matter will be dismissed shortly thereafter.

[8]       BTAC failed to provide any documentation or reasonable request for an extension on or by 23 August 2019.

Determination

[9] The objection application against E08/2978 is dismissed pursuant to s 148(b) of the Act.

Helen Shurven

Member

29 August 2019