Evelyn Gilla & Others on behalf of Yugunga-Nya (WC1999/046) & Trent Nathan King/Mark Selga
[2019] NNTTA 92
•5 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Evelyn Gilla & Others on behalf of Yugunga-Nya (WC1999/046) & Trent Nathan King/Mark Selga & Anor [2019] NNTTA 92 (5 November 2019)
Application No: | WO2018/0626 |
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 -
Trent Nathan King/Mark Selga
(grantee parties)
- and -
The 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 prospecting 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 parties: | Trent King |
| Representatives of the Government party: | Michael McMahon and Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
Background
On 2 May 2018, the State of Western Australia (State) gave notice, under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant prospecting licence P20/2338 (the licence) to Trent Nathan King and Mark Selga (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 24 August 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. The native title party’s objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party. The area of the proposed licence is located wholly within the area of the native title claim made by the Yugunga-Nya (WC1999/046).
The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in this matter as to whether or not the expedited procedure applies.
Relevant facts
This matter has had a long course. Initially, there was little contact from the grantee parties representative, and then a draft agreement appeared to be exchanged in March 2019, although there was some confusion arising between the grantee parties and the native title party as to the whereabouts of that agreement, and its status. On 29 April 2019, YMAC advised they no longer represented Yugunga-Nya, and that further contact should be made with another person, who was named, as well as one of the applicant group, also named. Given the lack of progress, I made directions on 14 May 2019 requiring all parties to provide contentions and evidence for the conduct of the inquiry in this matter.
The directions were communicated to the new Yugunga-Nya representatives, as well as to the State and grantee party representatives. At this time, there was no solicitor on the record for the applicant group, and communication was between the Tribunal and the representatives as advised by YMAC. Yugunga-Nya was directed to provide a statement of contentions, documentary evidence and witness statements for the objection application, verified where possible by affidavit, on or before 25 June 2019. Parties were advised 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
The State provided their compliance materials, however, Yugunga-Nya did not provide any contentions or evidence by the due date, and did not made any request for an extension of time to do so. In approximately June 2019, there was a further change of Yugunga-Nya representative to assist with future act inquiries, who I understand was appointed by a new solicitor on the record - case management conferences were held with that representative attending, in July and August 2019. Party representatives reported making contact with each other in order to reach agreement, which would then dispense with this objection application. At the case management conferences, I emphasised that if the Yugunga-Nya compliance was not forthcoming by the relevant due compliance date, the objection application would be at grave risk of dismissal.
In August 2019, compliance dates were amended to allow parties the opportunity to reach agreement. The amended directions were communicated to the future act representative for Yugunga-Nya at that time, as well as to the State and grantee parties, by email and also at a case management conference. Yugunga-Nya was required to comply on or by 11 October 2019 - nothing was provided from them by way of compliance
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 the applicant. 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 the registered claimant, 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 theTribunal 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 the native title party 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 prospecting licence P20/2338 is dismissed under s 148(b) of the Act.
Helen Shurven
Member
5 November 2019
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