David Smirke & Others on behalf of the Jurruru People v Baracus Pty Ltd and Another

[2018] NNTTA 32

NATIONAL NATIVE TITLE TRIBUNAL

David Smirke & Others on behalf of the Jurruru People v Baracus Pty Ltd and Another  [2018] NNTTA 32 (14 May 2018)

Application No: WO2017/0409

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

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

David Smirke & Others on behalf of the Jurruru People (WC2000/008)

(native title party)

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Baracus 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:	14 May 2018

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 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:	Ms Sarah Cimetta and Mr Ashley Truscott, Yamatji Marlpa Aboriginal Corporation
Representative of the grantee party:	Mr Matthew Clohessy, Emerald Tenement Services

Representative of the Government party: Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 8 March 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 licence E08/2889-I to Baracus Pty Ltd (Baracus). Approximately 15 per cent of the proposed licence area is overlapped by the Jurruru People claim group’s native title claim (Jurruru People claim group) (WC2000/008). By including an expedited procedure statement in the public advertisement of the licence, the State asserted the grant can be made without requiring Baracus or the State to negotiate with the Jurruru People claim group.

2. On 15 June 2017, the Jurruru People 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 then President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

3. When parties were notified of the objection application, they were provided with a Statement of Expectations, which outlines information about the Tribunal’s expedited procedure process, and what parties should do to progress the matter at each stage. Parties are advised in the notification email that they ‘are responsible for actively managing the matter and should not rely on the Tribunal to provide reminders of due dates, conferences or listings.’  In the Statement of Expectations, parties are reminded that ‘Non-compliance with Directions could lead to dismissal of the objection application’.

Should the inquiry proceed or should the matter be dismissed?

1. The Tribunal process allows some time for parties to attempt to reach agreement.  Due to lack of progress, I made directions on 23 February 2018 requiring all parties to produce contentions and evidence for the conduct of the inquiry, to enable me to determine whether or not the expedited procedure was attracted to the grant. In the usual way, initial compliance was directed at the State, to provide various maps and documentation relevant to the inquiry, by 7 March 2018.  The Jurruru People claim group was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 4 April 2018.

2. The State provided their initial compliance to the Tribunal and all parties on 7 March 2018.  No contentions or evidence were provided by the Jurruru People claim group on or by 4 April 2018, nor was further time requested. On  4 May 2018, the Tribunal wrote to the Jurruru People representative and all parties, noting the lack of compliance and including the following information (emphasis in original):

   The Member directs the Jurruru People representative to advise, by COB Monday 7 May 2018, whether or not they intend to lodge any submissions or evidence in this matter.  No response by COB 7 May 2018 will be taken to indicate that no submissions or evidence are intended to be provided.  The Member will then move to dismiss the objection…

3. No response was received from the Jurruru People claim group.

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. 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.

5. As at the date of this determination, the Tribunal has not received any response from the Jurruru People claim group as to why the objection should not be dismissed, nor any request for extension of compliance date directions or any reason for non-compliance. In the circumstances, I find the Jurruru People claim group 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 licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E08/2889-I is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
14 May 2018