Dennis Forrest & Ors on behalf of Kakarra Part A v Darren William Lassey, Kyle William Lassey & Jon Kitchen and the State of Western Australia

[2021] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

Dennis Forrest & Ors on behalf of Kakarra Part A v Darren William Lassey, Kyle William Lassey & Jon Kitchen and the State of Western Australia [2021] NNTTA 31 (25 June 2021)

Application No: WO2021/0636

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 William Lassey, Kyle William Lassey & Jon Kitchen

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	25 June 2021

Catchwords:

Native Title – future acts – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:

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

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 Andre Maynard, Cross Country Native Title Services Pty Ltd

Representative of the grantee party: Mr Darren Lassey

Representative of the Government party: Mr Matthew Smith, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

Background

1. On 18 November 2020, 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 P28/1382 (application) to Darren William Lassey, Kyle William Lassey and Jon Kitchen (grantee party). The s 29 notice included a statement that the State considers the grant of the application is an act attracting the expedited procedure under the NTA (expedited procedure statement).

2. If the expedited procedure applies, then the State may grant the application without entering into the full right to negotiate procedure under s 31 of the NTA.

3. The area of the application is located wholly within the area of the Kakarra Part A claim group. On 17 March 2021, the registered native title claimant for the Kakarra Part A claim group (native title party) lodged an objection with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement in relation to the application. The objection was lodged by Cross Country Native Title Services Pty Ltd (CCNTS) on behalf of the native title party.

4. The native title party’s objection application was lodged within the timeframe required under s 32 (3) of the NTA and therefore, under s 32 (4) of the NTA the Tribunal is required to determine whether the grant of the application is an act attracting the expedited procedure.

Relevant Facts

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.

2. On 30 March 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, the native title party were directed to provide the Tribunal its contentions and evidence by 25 May 2021. The native title party did not provide any contentions or evidence by the due date and did not make a request for an extension of time to do so.

3. On 26 May 2021, the Tribunal wrote to all parties advising that the native title party had failed to comply with directions made and the objection was now at risk of dismissal under s 148(b) of the NTA. That same day the native title party applied for an extension of time requesting the directions be varied by four weeks to provide their contentions and evidence. The grantee party opposed the request made by the native title party and requested the Tribunal dismiss the objection. On 1 June 2021, I granted a three week extension and the amended directions were provided to parties that same day. The native title party were now directed to provide their contentions and evidence by 15 June 2021.

4. On 15 June 2021, the native title party applied for a second extension of time requesting an additional four weeks to provide their contentions and evidence. The State and the grantee party opposed this request. I did not approve the extension on this occasion and on 18 June 2021 the Tribunal wrote to parties advising that the native title party had failed to comply with directions made and the objection was now at risk of dismissal under s148(b) of the NTA. Parties were invited to provide comment by no later than close of business on 23 June 2021. No response was received from parties.

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 application or to comply with a direction by the Tribunal.

2. While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences 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 [9] and [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 application within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).

5. In the circumstances, the native title party has had sufficient opportunities 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 application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.

Determination

1. The expedited procedure objection application in relation to the prospecting licence P28/1382 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
25 June 2021