Evelyn Gilla & Ors on behalf of Yugunga-Nya & Yandan Gold Mines Pty Ltd and Anor

[2019] NNTTA 120

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Ors on behalf of Yugunga-Nya & Yandan Gold Mines Pty Ltd and Anor [2019] NNTTA 120 (16 December 2019)

Application No: WO2019/0623 and WO2019/0627

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 Yugunga-Nya (WC1999/046)

(native title party)

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Yandan Gold Mines Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr JR McNamara
Place:	Brisbane
Date:	16 December 2019

Catchwords:

Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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

Representatives(s) of the native title party:

Mr Carl Peterson

Representative(s) of the grantee party: Ms Yvette Collins, Hetherington Exploration & Mining Title Services Pty Ltd

Representatives(s) of the Government party: Mr Matthew Smith, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

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 licences E51/1921 and E51/1920 to Yandan Gold Mines Pty Ltd (grantee party). The notification day was 19 June 2019. The s 29 notice included a statement that the State considers the grant of the licences are acts attracting the expedited procedure under the NTA (expedited procedure statement).

2. If the expedited procedure statement applies, then the State may grant the licences without compliance with the negotiation procedure under s 31 of the NTA.

3. The areas of the proposed licences overlap the area of the native title determination application made by the Yugunga-Nya claim group (WC1999/046) by 100 percent. On 29 July 2019, the registered native title claimant for the Yugunga-Nya claim group (native title party) lodged objections with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement.

4. The native title party’s objections were 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 licences are acts attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in these matters.

Relevant Facts

1. On 20 August 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. On 21 August 2019, the directions were communicated to all parties through email correspondence. The native title party were directed to provide the Tribunal with a statement of contentions, documentary evidence and witness statements for the objection applications, verified where possible by affidavit, on or before 11 November 2019. 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.

2. On 13 November 2019, the Tribunal wrote to all parties advising that the native title party had failed to comply with directions made and the objections were 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 20 November 2019. That same day the State wrote to the Tribunal formally requesting the objection applications be dismissed pursuant to s 148(b) as the applicant had failed to comply with direction 2. No response was received from the native title party or the grantee 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 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 [13]). I have applied those principles in my consideration of these matters.

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 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 additional extension of time.

6. In the circumstances, the native title party has had sufficient opportunities 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 these matters, I am satisfied that the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licences are act’s attracting the expedited procedure.

Determination

1. The expedited procedure objection applications against exploration licences E51/1921 and E51/1920 are dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
16 December 2019