Connie Jugarie & Others on behalf of Ngarrawanji v Prenti Exploration Pty Ltd and Another

[2017] NNTTA 12

NATIONAL NATIVE TITLE TRIBUNAL

Connie Jugarie & Others on behalf of Ngarrawanji v Prenti Exploration Pty Ltd and Another [2017] NNTTA 12 (11 April 2017)

Application No:                  WO2016/0339

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Connie Jugarie & Others on behalf of Ngarrawanji (WC1996/075)  

(native title party)

-and-

The State of Western Australia   

(Government party)

-and-

Prenti Exploration Pty Ltd  

(grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              11 April 2017

Date of reasons:                11 April 2017

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – failure to comply with directions – objection applications dismissed

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)

Western Australia v Ben Ward on behalf of the Miriuwung Gajerrong peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd [1996] FCA 993; 70 FCR 265 (‘WA v Ward’)

Representative of the        

native title party:              Ms Angela Booth, Kimberley Land Council

Representative of the        

Government party:            Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Kathleen Mulroney, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 27 January 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 E80/4983 to Prenti Exploration Pty Ltd (Prenti Exploration) without requiring Prenti Exploration or the State to negotiate with the Ngarrawanji native title claim group (Ngarrawanji claim group). The area of the proposed licence is overlapped by the Ngarrawanji native title claim (WC1996/075) by approximately 88.14 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 Ngarrawanji claim group, the State, and Prenti Exploration. The expedited procedure provision under the Act (s 32) is therefore the relevant provision as to process.

3. On 26 May 2016, the Ngarrawanji claim group 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 these matters.

Should the inquiry proceed or should the matter be dismissed?

1. On 15 February 2017, Prenti Exploration’s representative advised the Tribunal that agreement was not likely. On 16 February 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 Ngarrawanji claim group was directed to provide statements of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 29 March 2017. In the email which attached the directions, it was indicated 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’.

2. Neither contentions nor evidence were received from the Ngarrawanji claim by 29 March 2017. On 30 March 2017, the State wrote to all parties, requesting the objection be dismissed because the Ngarrawanji claim group had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 31 March 2017, the Tribunal wrote to the Ngarrawanji claim group’s representative and Prenti Exploration’s representative, asking them to respond to the State's request to dismiss the objection. Parties were given until 6 April 2017 to respond. On 4 April 2017, Prenti Exploration’s representative wrote to all parties to advise that Prenti Exploration supported the State’s request to dismiss the objection. No response was received from the Ngarrawanji claim group’s representative.

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. I also note the Federal Court decision in WA v Ward, which established that a determination whether the expedited procedure is attracted is to be made as speedily as possible.

5. As at the date of this determination, no response has been received from the Ngarrwanji claim group 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.

6. In the circumstances, the Ngarrawanji claim group 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 licence can be granted in an expedited way because I have concluded the objections should be dismissed.

Decision

1. The objection application of Ngarrawanji native title claim group against exploration licence E80/4983 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
11 April 2017