Buurabalyji Thalanyji Aboriginal Corporation RNTBC and North Rossa Pty Ltd - [2019] NNTTA 10

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalyji Thalanyji Aboriginal Corporation RNTBC and North Rossa Pty Ltd [2019] NNTTA 10 (6 March 2019)

Application No:

WO2018/0380

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

- and -

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

Buurabalyji Thalanyji Aboriginal Corporation RNTBC (WCD2008/003)

(native title party)

- and –

North Rossa Pty Ltd
(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	6 March 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(b) Native Title Amendment Bill 1997 [No. 2]
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 David Stock v Giralia Resources NL, [2000] NNTTA 333
Representative of the native title party:	Mr Matthew Hansen, Buurabalyji Thalanyji Aboriginal Corporation RNTBC

Representative of the grantee party:

Mr Jacob Wotherspoon, All Mining Legal Pty Ltd

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 APPLICATION

Background

On 24 January 2018, 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 E08/2968 to North Rossa Pty Ltd (North Rossa). The area of the proposed licence is partially overlapped by the Thalanyji determination (WCD2008/003), as represented by the Buurabalyji Thalanyji Aboriginal Corporation RNTBC (the Corporation).
The State included an expedited procedure statement in the public advertisement of the licence, and so in effect asserted the grant can be made without negotiation between the Corporation, the State and North Rossa.
The Corporation 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 as the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

On 19 December 2018, due to the age of the matter and little apparent progress on the agreement being negotiated between North Rossa and the Corporation, 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 Corporation was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 6 February 2019. Neither contentions nor evidence were received from the Corporation. On 7 February 2019 the representative for North Rossa wrote to the Tribunal to inquire as to whether the Tribunal had received the Corporation’s contentions or a request for an extension.
On 8 February 2019, the State requested the objection application be dismissed, as the Corporation had not complied with the Tribunal’s directions and no extension request had been received. The Tribunal wrote to all parties requesting the Corporation and North Rossa provide a response, by 15 February 2019, outlining any reasons why the objection should not be dismissed.
On 11 February 2019 the Tribunal received an email from North Rossa’s representative advising that they supported the State’s position. The Corporation’s representative wrote to the Tribunal and all parties on 15 February 2019, requesting a four week extension, noting they had been provided with instructions in regards to the amendments proposed by North Rossa to the draft agreement, and that there only remained two or three items to agree to. The representative for the Corporation advised that a response would be provided to North Rossa by close of business Monday 18 February 2019.
The Tribunal wrote to parties on 18 February 2019, and indicated that given it appeared agreement may be close, I would not dismiss the objection at that time. I noted the Corporation’s intention to respond to North Rossa on Monday 18 February 2019. On that basis, a 2 week extension was granted, with the Corporation’s compliance date being due on or by 1 March 2019. I also requested that either the Corporation or North Rossa update the Tribunal on or by 22 February 2019 as to progress towards the agreement. I noted that if progress is being made, a further period of extension for compliance directions may be considered and that parties may request that I convene a directions hearing if that would assist to provide a forum to discuss the outstanding issues.
On the morning of 22 February 2019, the representative for North Rossa wrote to the Tribunal and copied in all parties, to advise that a draft heritage agreement with the Corporation’s comments had not yet been received. On the afternoon of the same day, the representative confirmed to the Tribunal and all parties the documentation had now been received. No request for extension to directions was made by the Corporation, and no further communication was received from the Corporation.
On 5 March 2019, the representative for North Rossa wrote to the Tribunal, copying in all parties, noting that they had not received the Corporation’s contentions which were due to be filed on 1 March 2019.
On 6 March 2019 the State again requested the objection application be dismissed as the Corporation had not complied with the Tribunal’s directions and no further extension request had been received. This email was copied to North Rossa and the Corporation.
The Corporation, and all parties to this inquiry, have been on notice since the first communication from the Tribunal in this matter, that:
If and once directions are set, the matter will proceed to a listing hearing, if required, and a determination. Parties will be expected to comply promptly with the directions to ensure a full and efficient inquiry. Parties can continue to negotiate during the inquiry process and request assistance from the Tribunal if it is needed.
A Statement of Expectations is also provided to parties at the outset, which sets down the expectations of the Tribunal for all parties, including that:
Non-compliance with Directions could lead to dismissal of the objection application.
Two requests for dismissal have been received in relation to this objection, and the latter saw no response from the Corporation. It is not acceptable that there be no communication from an objector’s representative to such requests, nor is it acceptable that the objection is not progressed in a timely and effective manner.
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 Resources NL, Deputy President Franklyn QC stated (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
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 NNTT 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 NNTT directions.
27.10c …These limited provisions will assist the NNTT to more efficiently and appropriately manage its processes…

Decision

The objection application against exploration licence E08/2968 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
6 March 2019