Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group v TasEx Geological Services Pty Ltd and the State of Western Australia

[2022] NNTTA 23

NATIONAL NATIVE TITLE TRIBUNAL

Dennis Forrest & Ors on behalf of the Kakarra Part A Native Title Claim Group v TasEx Geological Services Pty Ltd and the State of Western Australia [2022] NNTTA 23 (23 March 2022)

Application No: WO2021/1801

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 the Kakarra Part A Native Title Claim Group (WC2020/005)

(native title party)

- and -

TasEx Geological Services Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	23 March 2022

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with direction – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

Teelow v Page [2001] NNTTA 107; 166 FLR 266

Representatives(s) of the native title party:

Jeremy Brown, Native Title Services Goldfields

Representative(s) of the grantee party: Andrew Jones, TasEx Geological Services Pty Ltd

Representatives(s) of the Government party: Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 25 August 2021, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence E27/630 (proposed licence) to TasEx Geological Services Pty Ltd. The s 29 notice included a statement that the State considers the grant of the proposed licence 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 proposed licence without entering into the right to negotiate procedure under s 31 of the NTA.

3. On 1 December 2021, the Kakarra Part A Native Title Claim Group (WC2020/005, WAD297/2020) (Kakarra) made an expedited procedure objection application to the National Native Title Tribunal (Tribunal).

4. The area of the proposed licence is located entirely within the Kakarra Part A claim area. Kakarra has status to make the objection application because, at the time the s 29 notice was given, they were a registered native title claimant over the proposed licence area and therefore a native title party (see ss 29(2)(b)(i) and 32(3) of the NTA).

5. The objection application was lodged within the timeframe outlined in 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 proposed licence 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 9 December 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. On 19 January 2022, at the directions hearing, Kakarra advised they were in the process of transitioning to a new legal representative. I extended the directions by two weeks to allow time for the transition. Under those extended directions, Kakarra was directed to provide the Tribunal its contentions and evidence by 25 February 2022.

3. On 2 March 2022, the Tribunal wrote to all parties noting that Kakarra had failed to comply with the extended directions and the objection was now at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business on 9 March 2022. No response was received from Kakarra’s representative, nor did Kakarra undertake any form of compliance with the directions.

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 significant 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 [13]). I have applied those principles in my consideration of this matter.

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

5. In this case, Kakarra has not provided any reason for its non-compliance with the direction of the Tribunal nor sought any additional extension of time.

6. In the circumstances, Kakarra has had sufficient opportunity to either comply with direction set by the Tribunal or to request an extension of time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to exploration licence E27/630 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
23 March 2022