Evelyn Gilla & Others on behalf of Yugunga-Nya v Duketon Consolidated Pty Ltd & Another

[2019] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya v Duketon Consolidated Pty Ltd & Another [2019] NNTTA 60 (9 August 2019)

Application No:

WO2018/0454

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)

- and -

Duketon Consolidated Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Helen Shurven, Member

Place:

Perth

Date:

9 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, 237, 148

Cases:

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

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

Representatives(s) of the native title party:

Mr Kim Audas

Representative(s) of the grantee party:

Mr Jacob Wotherspoon, All Mining Legal Pty Ltd

Representatives(s) of the Government party:

Mr Matthew Smith and Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS for decision to dismiss objection application

Background

[1] On 7 March 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 E21/201 (the proposed grant) to Duketon Consolidated Pty Ltd. In the notice, the State asserted the proposed grant attracted the expedited procedure. 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)           interfere directly with the native title holders’ community or social activities; and

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

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

[2]       The proposed grant is overlapped by the registered Yugunga-Nya native title claim (WC1999/046). On 25 June 2018, Yamatji Marlpa Aboriginal Corporation (YMAC) lodged an objection on behalf of Yugunga-Nya with the National Native Title Tribunal (the Tribunal) against the application of the expedited procedure to the proposed grant. I have been appointed to conduct an inquiry to decide whether the expedited procedure applies to the proposed grant of E21/201.

The proceedings to date

[3]       On 6 March 2019, I made directions for the inquiry, requiring all parties to produce contentions and evidence, to assist me determine whether or not the expedited procedure was attracted to the proposed grant. Included in those directions was that Yugunga-Nya provide a statement of contentions and supporting documents on or before 17 April 2019.

[4]       On 28 March 2019, the Tribunal received an email from YMAC advising they no longer represented Yugunga-Nya.  A period of time then ensued when representation of the claim group was uncertain for future act inquiries such as this matter.  Compliance dates were extended to 31 May 2019, to allow for representation to be settled.

[5]       On 4 June 2019, Mr Wotherspoon for Duketon Consolidated noted Yugunga-Nya’s non-compliance with the extended compliance date. Dismissal of the objection was not requested at that time.  As it appeared representation had still not been settled, the Tribunal emailed all parties extending the Yugunga-Nya compliance date to 19 July 2019.  In the email, the Tribunal noted as follows:

Member Shurven understands that the Yugunga-Nya Applicants are still endeavouring to clarify their representation for future act matters – as such, dismissal of expedited procedure objections may be problematic, given that the Applicants representation is not clear.  This also must be balanced by the fact that in lodging an objection, the Applicants are under an obligation to proceed with that process, and the process cannot be delayed indefinitely.  It has now been some months since the status of the Applicants representation for future act matters has been unclear. 

[6]       On 19 June 2019, the Tribunal was notified that Mr Kim Audas had been appointed by Yugunga-Nya to act on behalf of the claim group in matters such as this inquiry.

[7]       On 8 July 2019, all parties were advised the matter was to be heard in a case management conference on 19 July 2019. All parties attended the conference. Mr Wotherspoon advised no further progress had been made in regards to negotiations due to the changes in representation, and outlined that his client would likely suffer prejudice due to commercial terms of the grant, if the matter was further delayed. A final extension of time was given to Yugunga-Nya to provide contentions on or by 7 August 2019, noting that the objection was to be dismissed if no submissions were received. Amended directions were sent to all parties noting:

As Member Shurven reiterated in Friday’s conferences; due to prejudice that the grantee outlined they would likely suffer from delay, the native title party compliance date set is a firm date, it is unlikely any extensions will be given, and dismissal will be the outcome shortly after the compliance date if it is not met, or if the objection is not otherwise withdrawn or resolved.

[8]       Yugunga-Nya did not provide its statement of contentions or supporting documents for the purposes of this inquiry by 7 August 2019, and no further communications were received from them.

Consideration

[9]       I am satisfied Yugunga-Nya has been provided reasonable opportunity and time in which to comply with Tribunal directions. 

[10]     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. 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.

[11]     Yugunga-Nya has been given sufficient opportunity to comply with directions, and it would be unfair to prejudice Duketon Consolidated with further delay. I do not need to answer the question of whether the licence can be granted using the expedited procedure, because I have concluded the objection should be dismissed.

Determination

[12] The objection application against E21/201 is dismissed pursuant to s 148(b) of the Act.

Helen Shurven

Member

9 August 2019