Evelyn Gilla & Others on behalf of Yugunga-Nya v Auris Exploration Pty Ltd & Another

[2019] NNTTA 58

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya v Auris Exploration Pty Ltd & Another [2019] NNTTA 58 (1 August 2019)

Application No: WO2018/0690

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 & Others on behalf of Yugunga-Nya  (WC1999/046)

(native title party)

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Auris Exploration Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Helen Shurven, Member
Place:	Perth
Date:	1 August 2019

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:

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

Native Title Amendment Bill 1997 [No. 2]

Cases:

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

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

Representatives(s) of the native title party: Mr Kim Audas

Representative(s) of the grantee party: Rhys Davies and Katherine Perincek, DLA Piper Australia

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

REASONS FOR DETERMINATION

1. [1] On 30 May 2018, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) that it intended to grant exploration licence E51/1883 (the proposed grant) to Auris Exploration Pty Ltd (Auris exploration/the grantee). The notice included a statement that the grant of the licence is an act attracting the expedited procedure (s 32 of the Act). As outlined in s 237 of the Act the expedited procedure applies where the grant of the licence is not likely to, in summary:

   a.(a)      interfere directly with the native title holders’ community or social activities; and

   b.(b)      interfere with areas or sites of particular significance, in accordance with their traditions; and

   c.(c)      involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.

d.[2]   The area covered by the licence is wholly overlapped by the Yugunga-Nya registered native title claim (WC1999/046). On 11 September 2018, the registered native title claimant for the Yugunga-Nya claim lodged an objection with the National Native Title Tribunal (the Tribunal) against the application of the expedited procedure to the proposed grant of the licence. I have been appointed to decide whether the expedited procedure applies to the proposed grant of E51/1883.

The proceedings to date

a.[3] This matter has been delayed due to issues associated with Yugunga-Nya representation in future act matters such as expedited procedure objections. I recognise that native title parties may often need time to decide on, and secure, representation. This process can also be complicated by the fact that decisions are taken on a group basis, which also takes time. However, the Tribunal is an independent entity which must make administrative decisions in as timely a manner as possible. Those decisions must also be fair, and take into account the other parties. For example, s 109(2) of the Act outlines that the Tribunal must not operate in a way ‘so as to prejudice unduly any party to any proceedings that may be involved’.

b.[4]   This inquiry has come to a point where Auris Exploration have outlined commercial sensitivities which means it will be unduly prejudiced by delay in the outcome of the inquiry.  The proceedings to date are summarised chronologically as follows:

18 September 2018      Parties were notified, including that parties are to formally advise the Tribunal by 29 October 2018 whether they intend to resolve the objection by agreement or proceed with the inquiry.

10 May 2019                Directions were made with compliance by the native title party set for 21 June 2019, the grantee party for 5 July, the State for 19 July.

25 May 2019                The State submitted its material relating to licence boundaries, historical land tenure and Aboriginal communities, sites and heritage areas within and in the vicinity of the licence as well as the grantee’s work program.

4 July 2019The State requested that I dismiss the objection application under s 148(b) of the Act, as the native title party had failed to comply with directions and did not make submissions or request an extension of time to do so – this was copied to the Tribunal and all parties.

19 July 2019                 The matter was listed before me to hear from parties in regard to the State’s dismissal application.

The parties agreed to directions being amended to allow the native title party to make its submissions by 31 July 2019, the grantee party by 14 August and the State by 28 August.

a.[5]   I reiterated at the conference held with parties on 19 July 2019, that due to the prejudice Auris Exploration outlined they would likely suffer from delay, the date set for native title party compliance was a firm date. That is, it was unlikely any extensions would be given, and dismissal would be the outcome shortly after the compliance date if it was not met, or if the objection was not otherwise withdrawn or resolved.

b.[6]   The Tribunal was copied into a communication from Yugunga-Nya to Auris Exploration on 29 July 2019.  However, no contentions or materials were received by the Tribunal on or by 31 July 2019.

c.[7]   In considering this dismissal, I have had regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]).  I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  Once an objection application is made, it is incumbent on the objector to proceed with the application, and to communicate with the Tribunal and all parties about the application.  This principle has been reiterated many times in Tribunal decisions.  For example, in David Stock v Giralia, the Tribunal outlined (at page 6):

It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

a.[8]   Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):

27.10bReplacement item 40 inserts new section 148 which states that the Tribunal has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with Tribunal directions. 

27.10cThese limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…

a.[9]   Having had opportunity to present their materials, and having not done so, I consider this objection application should be dismissed.

Determination

a.[10] The objection application against E51/1883 is dismissed pursuant to s 148(b) of the Act.

Helen Shurven
Member
1 August 2019