Evelyn Gilla & Others on behalf of Yugunga-Nya v David Kenneth Hodder/Pamela Ann Hodder & Another

[2019] NNTTA 79

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya v David Kenneth Hodder/Pamela Ann Hodder & Another [2019] NNTTA 79 (2 October 2019)

Application No: WO2019/0116

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

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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David Kenneth Hodder/Pamela Ann Hodder

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Helen Shurven, Member

Place:

Perth

Date:

2 October 2019

Catchwords:

Native title – future act – 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, 32, 148

Cases:

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

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

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

Representative(s) of the grantee party: David Kenneth Hodder/Pamela Ann Hodder

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

REASONS FOR DETERMINATION

1. On 14 November 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 P51/3078-S (the licence) to David Kenneth Hodder/Pamela Ann Hodder (David and Pamela Hodder/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). If the expedited procedure applies, then the State may grant the licence without compliance with the negotiation procedure under s 31 of the Act.

2. The area covered by the licence is wholly overlapped by the Yugunga-Nya registered native title claim (WC1999/046). On 25 January 2019, 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 P51/3078-S.

The proceedings to date

1. This matter has been delayed due to issues associated with Yugunga-Nya representation. 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’.

2. After initially indicating they intended to resolve the objection by executing a Heritage Agreement, there was limited and sporadic contact with Yugunga-Nya through a number of representatives. Directions were first made in March 2019, with compliance by Yugunga-Nya set for 29 April 2019 and the other parties’ compliance to follow. However, it became apparent the group’s representation had not been settled, and the matter was listed before me along with other Yugunga-Nya objection applications.  In July 2019 I suspended directions to allow time for the issue of representation to be resolved. In July 2019 the Yugunga-Nya representation was finally settled, I revived the compliance directions in August 2019, and set the compliance date for Yugunga-Nya to 27 September 2019.  No contentions or materials were received by the Tribunal from Yugunga-Nya on or by that date.

Consideration

1. In considering this dismissal, I have had regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I refer also to previous decisions I have made dismissing other objection applications made on behalf of Yugunga-Nya. See, for instance, Yugunga-Nya v Auris Exploration in which I set out these principles, which have been reiterated many times in Tribunal decisions. Yugunga-Nya have had the opportunity to present their materials in this matter, and having not done so, I consider this 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 objection application against E51/1863 is dismissed pursuant to s 148(b) of the Act.

Helen Shurven
Member
2 October 2019