Evelyn Gilla & Ors on behalf of the Yugunga-Nya People v Big Rocks Mining Pty Ltd & Anor

[2019] NNTTA 98

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People v Big Rocks Mining Pty Ltd & Anor [2019] NNTTA 98 (12 November 2019)

Application No: WO2019/0626

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

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People (WC1999/046)

(native title party)

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Big Rocks Mining Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	12 November 2019

Catchwords:	Native title – future act – proposed grant of exploration permit – expedited procedure objection application – failure to comply with directions – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss29, 31, 32, 148(b)

Cases:

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

David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Mr Carl Peterson

Representative of the grantee party: Mr Michael Giles

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

REASONS FOR DETERMINATION

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licence E51/1916 (permit) to Big Rocks Mining Pty Ltd (grantee party). The notification day was 5 June 2019. The s 29 notice included a statement that the State considers the grant of the permit 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 permit without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the proposed permit overlaps the area of the native title determination application made by the Yugunga-Nya People claim group (WC199/046) by 99.96 per cent. On 29 July 2019, the registered native title claimant for the Yugunga-Nya People claim (native title party) lodged an objection with the National Native Title Tribunal against the inclusion of the expedited procedure statement. The native title party’s objection was lodged by Mr Gary Plowright on behalf of the native title party. In its covering email, Mr Gary Plowright nominated Mr Kim Audas as the representative of the native title party and an email address was provided.

4. I note the area of the proposed permit overlaps the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010) by less than <0.01 per cent. Wajarri Yamatji #1 lodged an objection against the inclusion of the expedited procedure statement and that objection has been dismissed under s148 (b) of the NTA.

5. The native title party’s objection was made 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 permit is an act attracting the expedited procedure.

6. The President of the Tribunal has directed me to constitute the Tribunal for the purposed of the inquiry in this matter.

Relevant facts

1. On 20 August 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. The directions were sent to all parties on 21 August 2019. The native title party was directed to provide a statement of contentions, documentary evidence and witness statements for the objection application, verified where possible by affidavit, on or before 28 October 2019. The native title party did not provide any contentions or evidence by the due date, and has not made any request for an extension of time to do so.

2. On 1 October 2019, the Federal Court made orders accepting a change of lawyer for the Yugunga-Nya People claim group, and the future act representative who had carriage of this matter advised the Tribunal on 21 October 2019 that as at 17 October 2019, they no longer represented Yugunga-Nya People on this or other future act inquiry matters.

3. On 29 October 2019, the Tribunal wrote to the representatives of the native title party and grantee party, noting the native title party’s non-compliance asking whether the native title party does intend to comply in this matter and if so will they be seeking an extension in relation to Direction 2. No response was received from the representatives for the native title party or grantee party.

4. On 30 October 2019, the Tribunal’s Future Act Manager wrote to the solicitor on record for Yugunga-Nya enclosing a list of all Yugunga-Nya future act matters before the Tribunal, including the current status for each matter and any relevant compliance dates requiring action by Yugunga-Nya. The Tribunal requested that the solicitor contact the Tribunal to provide any comments on how the applicant intends to manage those matters before the Tribunal by close of business, 1 November 2019. The Tribunal received a response from the solicitor, but only to the effect that he had appointed, on behalf of Yugunga-Nya, a new future acts representative.

5. On 6 November 2019, the Tribunal wrote to the new future act representative noting the native title party’s non-compliance and advising that the objection is now at risk of dismissal under s148 (b) of the NTA. That same day the State wrote to the Tribunal and all parties requesting the dismissal of the objection. No response was received from the representatives for the native title party or grantee party.

Consideration of the 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 a direction 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 application within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).

5. In this case the native title party has not given any reason for its non-compliance with the directions of the Tribunal, nor sought any extension of time. Further, the native title party has not responded to the Tribunal’s advice despite being given an opportunity to do so.

6. In the circumstances, the native title party has had sufficient opportunity to comply with directions set by the Tribunal or make a request for 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. Accordingly, it is not necessary for me to determine whether the grant of the permit is an act attracting the expedited procedure.

Decision

1. The objection application against E51/1916 is dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
12 November 2019