Dennis Forrest & Ors on behalf of Kakarra Part A v Darren Shane Scattini; John Leslie Mackie; Gold Geological Consulting Pty Ltd and Another

[2021] NNTTA 33

NATIONAL NATIVE TITLE TRIBUNAL

Dennis Forrest & Ors on behalf of Kakarra Part A v Darren Shane Scattini; John Leslie Mackie; Gold Geological Consulting Pty Ltd and Another [2021] NNTTA 33 (1 July 2021)

Application No: WO2021/0509; WO2021/0510; WO2021/0511; WO2021/0512; WO2021/0513; WO2021/0645

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

- and -

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

Dennis Forrest & Ors on behalf of Kakarra Part A (WC2020/005)

(native title party)

- and -

Darren Shane Scattini; John Leslie Mackie; and Gold Geological Consulting Pty Ltd

(grantee parties)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	1 July 2021

Catchwords:

Native title – future acts – proposed grant of prospecting licence – proposed grant of special prospecting licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

Cases:

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107 (Teelow v Page)

Representative of the native title party:

Andre Maynard, Cross Country Native Title Services Pty Ltd

Representatives of the grantee parties:

Darren Shane Scattini (for WO2021/0509)

Paul Mackie (for WO2021/0510; WO2021/0511; WO2021/0512; and WO2021/0513)

Tanya Cole, GETS Mining (for WO2021/0645)

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

REASONS FOR DETERMINATION

1. The State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence P28/1387 and special prospecting licences P28/1361-S, P27/2450-S, P27/2451-S, P27/2452-S and P27/2453-S (collectively, licences).

2. The s 29 notices included a statement that the State considers the grant of the licences is an act attracting the expedited procedure under the NTA (expedited procedure statement). Details of the notification day for each licence, as well as the relevant grantee party, are set out in the Schedule to this decision.

3. The areas of the licences are located within the area of the Kakarra Part A native title determination application (WC2020/005). The registered native title claimant for Kakara Part A (native title party) lodged objections with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement in relation to the licences.

4. This decision relates to the dismissal of a number of objection applications lodged by the registered native title claimant for the Kakarra Part A native title determination application (WC2020/005) (native title party). The details of the objection applications, including the date of lodgement are also set out in the Schedule.

5. The President of the Tribunal appointed me to constitute the Tribunal for the purposes of the inquiries. The circumstances of each application are similar and therefore they will be determined together.

Relevant Facts

1. The information in the Schedule includes the date I made the most recent directions requiring all parties to provide contentions and evidence.

2. As indicated in the Schedule, the native title party was to comply on 22 June 2021 in each matter. In each case, the native title party made a request for this date to be extended by varying periods of two to four weeks. Having considered a range of factors including the previous extensions granted in each matter, I did not grant the native title party’s requests for extension.

3. The Tribunal advised the parties in each matter of my decision and, given the native title party failed to comply on 22 June 2021, the parties were also advised that the objection applications were at risk of dismissal pursuant to s 148(b) of the NTA. Parties were invited to provide comments by close of business on 30 June 2021. Comments from two of the grantee parties were received and considered prior to making this determination. No response was received from the State or native title party.

Consideration of dismissal

1. Under s 148(b) of the NTA the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the native title party fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal.

2. While the Tribunal has broad discretion to dismiss an objection application, doing so has the potential for significant implications for the native title party and is not an action taken lightly.

3. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.

4. I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection applications within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).

5. In each matter, the native title party has not provided any reason for its non-compliance with the directions of the Tribunal and its request for extensions of time were not granted.

6. In the circumstances, the native title party has had sufficient opportunity to comply with directions set by the Tribunal. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed.

Determination

1. The expedited procedure objection applications in relation to prospecting licence P28/1387 and special prospecting licences P28/1361-S, P27/2450-S, P27/2451-S, P27/2452-S and P27/2453-S are dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
1 July 2021

SCHEDULE

Objection Application No.	Tenement No.	Grantee Party	Notification Day (s29 Notice)	Objection Lodgement Date	Initial Directions Made	Native Title Party Compliance Date
WO2021/0509	P28/1361-S	Darren Shane Scattini	4/11/2020	4/03/2021	29/03/2021	22/06/2021
WO2021/0510	P27/2450-S	John Leslie Mackie	4/11/2020	4/03/2021	29/03/2021	22/06/2021
WO2021/0511	P27/2451-S	John Leslie Mackie	4/11/2020	4/03/2021	29/03/2021	22/06/2021
WO2021/0512	P27/2452-S	John Leslie Mackie	4/11/2020	4/03/2021	29/03/2021	22/06/2021
WO2021/0513	P27/2453-S	John Leslie Mackie	4/11/2020	4/03/2021	29/03/2021	22/06/2021
WO2021/0645	P28/1387	Gold Geological Consulting Pty Ltd	18/11/2020	17/03/2021	30/03/2021	22/06/2021