Gooniyandi Aboriginal Corporation RNTBC v Dreadnought (Kimberley) Pty Ltd
[2020] NNTTA 82
•24 December 2020
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Aboriginal Corporation RNTBC v Dreadnought (Kimberley) Pty Ltd and Another [2020] NNTTA 82 (24 December 2020)
Application No: | WO2019/1004 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Gooniyandi Aboriginal Corporation RNTBC (WCD2013/003)
(native title party)
- and -
Dreadnought (Kimberley) Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 24 December 2020 |
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: | Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia Resources NL) |
| Representatives(s) of the native title party: | Mr Shaz Rind, Arra Group |
| Representative(s) of the grantee party: | Ms Claire McGowan, Mining Access Legal |
| Representatives(s) of the Government party: | Mr Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
BACKGROUND
In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice that it may grant exploration licence E80/5364 (licence) to Dreadnought (Kimberley) Pty Ltd (formerly Ironringer (Tarraji) Pty Ltd) (Dreadnought), with a notification day of 20 September 2019.
The s 29 notice included a statement that the State considers the grant of the licence to be an act attracting the expedited procedure under the NTA (expedited procedure statement).
Gooniyandi Aboriginal Corporation RNTBC (Gooniyandi) holds native title on trust on behalf of the Gooniyandi people in relation to the majority of the licence area.
On 5 November 2019, Gooniyandi lodged an objection with the Tribunal against the inclusion of the expedited procedure statement. Gooniyandi’s objection was made within the timeframe required under s 32(3) of the NTA and therefore under s 32(4) of the NTA, the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure. The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry in this matter.
Relevant Facts
On 8 November 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. The State provided its initial material on 24 January 2020 and Gooniyandi’s contentions and evidence relevant to its objection were then due on or before 11 February 2020.
On 7 February 2020, Gooniyandi sought an extension of time of approximately two weeks due to (unexplained) reasons beyond its control. Gooniyandi also noted that Dreadnought had changed its representative and said it was seeking an opportunity to engage with Dreadnought in relation to a heritage agreement. Parties were reminded that any extension of time should be for the purposes of enabling a party to comply with Tribunal directions and that negotiations may occur in parallel. However, given the short duration of the extension sought and the support of Dreadnought and the State, I extended the due date for Gooniyandi’s material to 24 February 2020.
On 19 February 2020, Gooniyandi sought a further extension, of approximately four weeks due to the impact of an extreme weather event affecting the availability of Gooniyandi’s chairman. Dreadnought supported this request, however, the State said it would support an extension of up to two weeks only. In light of the circumstances giving rise to the request, I allowed the extension but parties were advised that Gooniyandi was expected to provide its material on or before 24 March 2020 and that any further extension was unlikely.
On 12 March 2020, Gooniyandi indicated that it would not be in a position to comply by 24 March 2020 and requested an extension to allow time for a board meeting to occur in the week of 20 April 2020. Gooniyandi also indicated that it was awaiting a response from Dreadnought to its draft heritage agreement. However, this third extension request was not decided due to circumstances associated with COVID-19.
On 24 March 2020, the Tribunal issued an interim direction in response to the measures associated with the COVID-19 pandemic, which enabled parties to be excused from compliance in certain circumstances. On 16 April 2020, Gooniyandi provided a statement in response to the interim direction and parties were advised on 17 April 2020 that compliance with directions was excused until further notice.
On 25 June 2020, the matter was listed for a case management conference to discuss whether parties remained impacted by any restrictions in place due to COVID-19 and when steps would be taken to process the matter. Case management conferences were also held on 30 July 2020, 27 August 2020 and 24 September 2020. During those conferences the native title and grantee parties provided information about their progress towards an agreement, particularly proposals for Dreadnought to meet with Gooniyandi’s board, initially on 10 August 2020. All parties, including the State, were content for additional time to be allowed to progress an agreement before directions were reinstated.
However, despite this, very little progress was made and, on 12 October 2020, Gooniyandi wrote to the Tribunal to advise its Board was now intending to meet on 11 and 12 November 2020.
On 13 October 2020, the Tribunal wrote to parties attaching draft directions and advising that, due to the significant age of the matter and the minimal progress towards an agreement, I proposed to reinstate directions.
On 22 October 2020, after considering parties’ comments, I made directions requiring Gooniyandi’s material to be provided on or before 30 November 2020. This period was intended to allow sufficient time for Gooniyandi to comply following consideration at its November board meeting
On 11 December 2020, the Tribunal wrote to all parties advising that Gooniyandi had failed to comply with directions made and the objection was at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comments.
On 13 December 2020, Gooniyandi advised that this matter was not considered at its November board meeting and requested an extension into 2021 due to a range of circumstances including “sorry business, wet season, lore and cultural business in the Kimberley and holiday season”. Gooniyandi also provided further background to these circumstances on 16 December 2020. This request was supported by Dreadnought, but opposed by the State due to the length of time the matter had been on foot and the extensions granted to date.
Consideration of dismissal
Under s 148(b) of the NTA the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the native title party fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal.
While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences for the native title party, and it is not an action taken 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 considered in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.
In this case Gooniyandi has had ample opportunity to comply with the Tribunal’s directions, yet it is apparent that it has not taken any steps to do so. Its focus has been on reaching an agreement with Dreadnought. I am mindful that Gooniyandi was, for a time, affected by COVID-19 restrictions and has also faced a number of other challenges and difficulties this year. However, it has also been afforded extensive time to comply with directions as well as a considerable period of case management prior to the reinstatement of directions.
It also appears from the correspondence that Gooniyandi has found it necessary to prioritise other business over this expedited procedure inquiry. That is its choice, but does come at a risk. As the applicant in this proceeding Gooniyandi should have been taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).
It remains open to Gooniyandi and Dreadnought to continue their efforts towards a heritage agreement. However, the objection application is now over 12 months old and having regard to all the facts and circumstances of this matter, I am satisfied that it should be dismissed.
Decision
Gooniyandi’s expedited procedure objection application in relation to exploration licence E80/5364 is dismissed under s 148(b) of the NTA.
Ms Nerida Cooley
Member
24 December 2020
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