Evelyn Gilla & Others on behalf of Yugunga-Nya v Factor Resources Pty Ltd & Another

[2019] NNTTA 78

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya v Factor Resources Pty Ltd & Another [2019] NNTTA 78 (2 October 2019)

Application No: WO2018/0209

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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Factor Resources 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:	2 October 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

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

Representative of the native title party: Kim Audas

Representative of the grantee party: Iva Morrell, McMahon Mining Title Services Pty Ltd

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

REASONS FOR DETERMINATION

1. On 13 December 2017, 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 E51/1853 (the licence) to Factor Resources Pty Ltd (Factor Resources/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 4 April 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 E51/1853.

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. In January 2019, I made directions for all parties to provide evidence and materials for the inquiry.  The directions were amended and extended a number of times as the group’s representation had not been settled as at May 2019.   

3. Following a request from the State to dismiss the objection application, the Tribunal set out the proposed course of action in an email dated 3 May 2019:

   Member Shurven notes both the grantee and State have supported this expedited procedure objection application be dismissed.  The Member must balance the rights and interests of all parties, and dismissal effectively ends any rights or interests the native title party has in this inquiry…[A]s at late February 2019, the grantee indicated they were very close to reaching agreement.  If parties can reach agreement and withdraw the objection, please let the Tribunal know as soon as possible.

4. As at July 2019, the grantee representative was still hopeful of resolving the objection by agreement.  Once the issue of representation was finally settled directions were amended to extend the compliance date for Yugunga-Nya to 27 September 2019.  In an email to parties dated 16 August 2019, I noted that ‘if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application’. 

5. No contentions or materials were received by the Tribunal from Yugunga-Nya by the compliance date of 27 September 2019.

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 also 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