Evelyn Gilla & Others on behalf of Yugunga-Nya (WC1999/046) & Marjorie Ann Molloy, Noonpark Pty Ltd, Katherine Anne Barritt, Mark Neale Tessman, Mavia Pty Ltd
[2019] NNTTA 94
•5 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Evelyn Gilla & Others on behalf of Yugunga-Nya (WC1999/046) & Marjorie Ann Molloy, Noonpark Pty Ltd, Katherine Anne Barritt, Mark Neale Tessman, Mavia Pty Ltd [2019] NNTTA 94 (5 November 2019)
Application No: | WO2018/0348 |
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 -
Majorie Ann Molloy, Noonpark Pty Ltd, Katherine Anne Barritt, Mark Neale Tessman, Mavia Pty Ltd
(grantee parties)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 5 November 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, 148(b) |
Cases: | David Stock v Giralia Resources NL, [2000] NNTTA 333 (David Stock v Giralia) Puutu Kunti Kurrama and Pinikura People v Brockman Exploration Pty Ltd and Another [2016] NNTTA 46 (PKKP v Brockman) Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) |
| Representative of the native title party: | Sam Hegney, Sam Hegney Solicitors |
| Representative of the grantee party: | Laurence Molloy |
| Representatives of the Government party: | Matthew Smith and Bethany Conway Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
Background
On 7 February 2018, the State of Western Australia (the State) gave notice, under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant exploration licence E21/202 (licence) to Marjorie Ann Molloy, Noonpark Pty Ltd, Katherine Anne Barritt, Mark Neale Tessman and Mavia Pty Ltd (grantee parties). The s 29 notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure under the Act.
On 21 May 2018, the registered native title claimant for Yugunga-Nya lodged an objection with the National Native Title Tribunal (the Tribunal) against the inclusion of the expedited procedure statement with relation to the exploration licence. The objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of Yugunga-Nya. The area of the proposed licences is located wholly within the area of the native title claim made by the Yugunga-Nya (WC1999/046) (native title party).
The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in this matter.
Relevant facts
On 24 May 2018, the Tribunal wrote to parties advising the receipt of the objection application. That communication included wording to the effect that parties would be expected to obtain instructions to progress the matter, and:
If and once directions are set, the matter will proceed to a listing hearing, if required, and a determination. Parties will be expected to comply promptly with the directions to ensure a full and efficient inquiry. Parties can continue to negotiate during the inquiry process and request assistance from the Tribunal if it is needed.
I directed that parties had until 5 July 2018 to formally advise the Tribunal whether they intend to resolve the objection by agreement or proceed with the inquiry. On 10 July 2018 YMAC advised that a draft Alternate Heritage Agreement (AHA) was sent to the grantee party representative on 30 May 2018. On 15 July 2018, the grantee party wrote to parties confirming receipt of the AHA and requested that the interim status conference be vacated. Parties were given time to reach agreement, with various requests for adjournment made by the grantee parties representative due to personal reasons which were outlined but need not be restated here. Parties attended a number of case management conferences, where it appeared some progress was being made toward agreement.
Ultimately, given the lack of progress, I set directions on 7 March 2019, requiring all parties to provide contentions and evidence for the conduct of the inquiry in this matter. AS YMAC were no longer representing the native title party, the directions were communicated to the new Yugunga-Nya representative, as well as to the State and grantee party representative.
On 21 March 2019, the State provided their initial compliance. The Yugunga-Nya compliance date was 18 April 2019, and they did not provide any materials, nor did they make any request for an extension of time to do so. It became apparent that Yugunga-Nya were changing their representation again, and so I suspended directions and adjourned a case management conference until 28 June 2019, allowing sufficient time to obtain representation. The new representative, appointed by the then solicitor on the record, attended case management conferences between June and October, but was unable to obtain instructions from Yugunga-Nya.
Given the lack of progress, I reinstated directions on 20 September 2019, requiring all parties to provide contentions and evidence for the conduct of the inquiry in this matter. It was emphasised at case management conferences that lack of compliance would put the objection at grave risk of dismissal. The amended compliance date for Yugunga-Nya was 18 October 2019. No materials were provided for Yugunga-Nya.
On 1 October 2019, the Federal Court made orders accepting a change of lawyer for Yugunga-Nya, and the future act representative who had carriage of this matter since approximately late June 2019 advised the Tribunal on 21 October 2019 that as at 17 October, they no longer represented Yugunga-Nya on this or other future act inquiry matters. On 24 October 2019, I wrote to the new solicitor on the record for Yugunga-Nya, copying in all parties, and reiterated to parties that the matter was at risk of dismissal. I noted in the communication that although I appreciated the difficulties which arose from ongoing changes of representation for the native title party, timelines cannot continue to be extended in expedited procedure matters. In addition, I noted this, and two other matters, were now of a significant age. Parties were given until 30 October 2019 to provide any comment. No comment was received.
Separate to communications made to representatives in this inquiry process, the Tribunal’s Future Act Manager also sent a letter on 30 October 2019, via email to the solicitor on the record for Yugunga-Nya, enclosing a list of all Yugunga-Nya future act matters before the Tribunal, including the current status of each matter and any relevant compliance dates requiring action by Yugunga-Nya. The Tribunal requested that the solicitor contact the Tribunal to provide any comments on how the applicant intends to manage those matters before the Tribunal by close of business, 1 November 2019. The Tribunal received a response from the solicitor, but only to the effect that he had appointed, on behalf of Yugunga-Nya, a new future acts representative – no comment was offered on this particular matter.
Consideration of dismissal
I made obervations in relation to similar circumstances in my decision PKKP v Brockman. For example, at [20] I noted:
It may be that the PKKP no longer wish to prosecute these objections, however, this has not been communicated to the Tribunal. Whatever the status of these objection applications, the PKKP or its representative should have clearly communicated that status to the Tribunal, sought additional time for compliance if it was needed, or sought a variation in the directions or springing order so that the applications could be progressed. However, none of these actions were taken.
I went on to say, at [24]:
In practical terms, the Tribunal recognises that an agreement which can be negotiated between parties will usually be preferred by parties, over one that is imposed on them through an arbitral process. The Tribunal also recognises that it takes time to negotiate agreements, taking into account the decision making processes of the parties. However, once an objection application is made by a native title party, it must proceed with that objection as quickly and effectively as possible. Where time for negotiation is needed to make an agreement, or to take instructions, it will be considered by the Tribunal. However, if a party gives no response or fails to provide information or evidence when directed, it is likely to prejudice the other parties, and may result in the dismissal of the objection. Dismissing these applications is not something I have done lightly.
The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with a direction are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter. There had been opportunity for compliance materials to be lodged during the periods of representation.
I am also mindful that Yugunga-Nya, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe. This was emphasised as early as the year 2000, in David Stock v Giralia, where the Hon E M Franklyn QC noted:
If the parties do not wish to negotiate or there is no reasonable prospect of settlement, directions set by the Tribunal giving dates for compliance are, in the absence of agreement in the interim, intended and required to be complied with (at page 7).
In the circumstances, I am satisfied that Yugunga-Nya has had sufficient opportunity to comply with my directions, or request an extension of time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the 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.
Decision
The expedited procedure objection application in relation to exploration licence E21/202 is dismissed under s 148(b) of the Act.
Helen Shurven
Member
5 November 2019
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