Gooniyandi Aboriginal Corporation RNTBC & Recharge Minerals Ltd and Another
[2022] NNTTA 68
•15 November 2022
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Aboriginal Corporation RNTBC & Recharge Minerals Ltd and Another [2022] NNTTA 68 (15 November 2022)
Application Nos: | WO2021/1301, WO2021/1538 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Gooniyandi Aboriginal Corporation RNTBC (WCD2013/003)
(native title party)
- and -
Recharge Minerals Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Ms Helen Shurven, Member |
Place: | Melbourne |
Date: | 15 November 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – consideration of party circumstances – compliance directions extended multiple times - objection applications dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 148(b) |
Cases: | David Stock & Others on behalf of Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia) Sharpe v State of Western Australia [2013] FCA 599 (Sharpe v Western Australia) Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (Teelow v Page) |
| Representative of the native title party: | Shaz Rind, Arra Group |
| Representatives of the grantee party: | Kellie Hill and Jack Looby, Agreement Hub |
| Representative of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 30 June 2021 and 23 July 2021, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E80/5574 and E80/5575, respectively, to Recharge Metals Ltd.
The area of the proposed licences is overlapped by the Gooniyandi Combined #2 determination (Sharpe v State of Western Australia). The native title rights and interests in these areas are represented by the Gooniyandi Aboriginal Corporation Registered Native Title Body Corporate (the Corporation).
The State included an expedited procedure statement in the public advertisement of the licences, asserting that the grant of each licence can be made without negotiation between the Corporation, the State and Recharge Metals. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of these proposed licences, will be an ‘act attracting the expedited procedure’, thereby excluding it from the ‘right to negotiate’ provisions of the Act (see also s 31 and s 32 of the Act). A native title party may object to the application of the expedited procedure statement.
The Corporation lodged an objection with the National Native Title Tribunal (the Tribunal) against the application of the expedited procedure to the grant of each licence. To answer the question of whether the licences can be granted in such an expedited way, I was appointed as the Member conducting the inquiry. I have concluded the objections should be dismissed, for the reasons outlined below.
Should the inquiry proceed or should the matter be dismissed?
Following lodgement and acceptance of the objections by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. These directions were provided to all parties in the notification email sent by the Tribunal – in that email, as with all notification emails, the attention of parties is drawn to the fact that the objection applications face dismissal if they are not progressed in a timely manner.
Initially, the matters travelled separately. Parties attended a preliminary conference for WO2021/1301 in September 2021, at which the State explicitly noted that the native title party would need to make submissions if parties did not reach agreement. That is well over twelve months ago. Under the directions issued, the State complied for both matters on time in December 2021, copying in all party representatives. The native title party was next due to comply. At a case management conference for both matters in February 2022, the native title party indicated there had been delays in the agreement making process, due to weather conditions and COVID. Directions were extended accordingly to allow parties more time to negotiate an agreement, and the State indicated it was unlikely to support further extensions to directions.
In April 2022 at a further case management conference, Recharge Metals and the Corporation reiterated their intention to meet, and work towards a heritage agreement. Further case management conferences were held, where a combination of one, or other, or both parties were not available. At a July case management conference, I counselled the native title party that these matters should be given priority due to their age and the risk of dismissal. As at August, a draft heritage agreement had been exchanged, however, parties still appeared to be far apart in terms of finalising an agreement. The State again warned it would not support any further directions extensions.
Directions were subsequently extended due to sorry business within the community.
An email was sent to parties on 10 October 2022, and it is worth quoting this in full as it sets out the circumstances and course of these matters, and the final extension provided to the native title party (emphasis in original):
Member Shurven notes the exchange between the native title party and grantee party on these matters.
The Tribunal has granted many extensions on these matters and as has been outlined on a number of occasions, directions cannot be extended indefinitely as these matters are in the expedited procedure inquiry process. Case management has not seen any substantive progress it appears, since the grantee party email to the native title party on 15 August 2022.
The Member notes the grantee party is unable to attend the CMC [case management conference] this Friday, and the native title party board meeting has been pushed to a date in late October/early November – if that board meeting does not take place, or instructions are not otherwise obtained, these matters will be pushed into 2023, which is not in keeping with the expedited procedure process. While the Member appreciates that strict adherence to a process should not over-ride parties need and desire to reach agreement, the timetable in these matters appears to have gone beyond that, and at some stage, a line must be drawn under the time limit for compliance.
The Member also notes at the case management conference on 26 August 2022, Mr Rind was concerned at the changes proposed by the grantee party to the preferred heritage agreement and undertook to get instructions in early October when he returned from leave. The Member also notes the States grave concerns regards the timeframe of these inquiries.
Case management does not appear to have been an effective tool for moving these matters towards agreement. To save parties any further time and expense in attending case management, the Member will simply extend the native title party compliance direction to 11 November 2022, with all other directions to follow. Please find attached.
If compliance is not forthcoming on or by 11 November 2022, the matters will be dismissed summarily with no further prior communication to parties.
These objections were lodged in August and October last year [2021], respectively - once an objection is lodged, it is incumbent on the applicant to progress the objection in a timely and effective manner. The Tribunal understands that circumstances sometimes requires extensions to accommodate party needs. However, these matters have had a similar trajectory to those recently dismissed by Member Cooley (Gooniyandi Aboriginal Corporation RNTBC v IGO Newsearch Pty Ltd and Another[2022] NNTTA 60). It is open to parties to continue to negotiate an agreement outside of the Tribunal processes if the objections are dismissed.
If any party takes exception to this approach, Member Shurven will consider any comments made on or by Friday 14 October 2022 – if no comments are made, parties are to consider the approach above has been actioned.
The Corporation wrote to the Tribunal and Recharge Metals on 11 November 2022, noting that the Gooniyandi Directors had indicated they had pushed back any meetings to 2023 due to deaths in the community. No materials were provided in accordance with the extended directions, and as such, the Corporation was non-compliant. Mr Rind noted for the Corporation, ‘we have goodwill between parties, however without a HPA [heritage protection agreement], the way forward is not clear’. Responses from Recharge Metals throughout the inquiry and certainly from August 2022 indicated that parties had made progress in negotiating a HPA, but that there remained issues that needed resolving before a HPA could be finalised.
Consideration of dismissal
The Tribunal is mandated to conduct matters in a ‘fair, just, economical, informal and prompt way’ (s 109 of the Act). In addition, s 148 of the Act deals with the failure to proceed in a reasonable time. 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…
In considering these dismissals, 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 an 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.
The State has been concerned throughout the inquiry process about the delays. Due to various extenuating circumstances, extensions were allowed. However, parties were warned on several occasions that if compliance was not forthcoming, the applications would be dismissed. Dismissal is not a course of action which is taken lightly, nor is it one which is taken from a single event or action.
On the basis of the principles outlined in Teelow v Page (at [13]), and noting the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection, my conclusion is that the Corporation has been given sufficient opportunity to comply with the directions or progress the applications.
Recharge Metals has, throughout the inquiry process, indicated its intention to meet with the Corporation to advance the agreement making process, and the Corporation has noted there is goodwill between the parties. As noted in the email communication to parties in October 2022 (at [9] above), it is open to parties to continue to negotiate an agreement outside of the Tribunal inquiry process.
Decision
The objection applications against exploration licences E80/5574 and E80/5575 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).
Ms Helen Shurven
Member
15 November 2022
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