Evelyn Gilla & Others on behalf of Yugunga-Nya v Omni Projects Pty Ltd & Another

[2019] NNTTA 77

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Others on behalf of Yugunga-Nya v Omni Projects Pty Ltd & Another [2019] NNTTA 77 (1 October 2019)

Application No: WO2018/0320

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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Omni Projects 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 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

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

Representatives of the native title party:

Kim Audas

Representative of the grantee party: Claire Riessen, Mining Access Legal

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

REASONS FOR DETERMINATION

1. On 24 January 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 E51/1863 (the licence) to Omni Projects Pty Ltd (Omni Projects/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 2 May 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 licence.

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 set in February 2019, when it appeared representation had been settled. Directions were made, with compliance by Yugunga-Nya set for 27 March 2019, with the other parties compliance to follow. However, it became apparent representation had not been settled, and directions were extended between March and June 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 14 June 2019:

   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.  Directions in this matter were set back in February 2019. 

   Member Shurven extends the directions for the Yugunga-Nya contentions in this matter to 19 July 2019.  By that time, representation may be clarified.  If any party has any issue about that course of action, please let me know as soon as possible.

   The grantee had indicated it was still hopeful of resolving the matter by agreement, and no party took issue with the proposed approach. 

4. Once the issue of representation was settled, parties attended a number of case management conferences, and 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 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.

2. 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…

3. 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
1 October 2019