Gooniyandi Aboriginal Corporation RNTBC v Igo Newsearch Pty Ltd
[2022] NNTTA 60
•14 September 2022
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Aboriginal Corporation RNTBC v IGO Newsearch Pty Ltd and Another [2022] NNTTA 60 (14 September 2022)
Application No: | WO2021/1535; WO2021/1536 |
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 -
IGO Newsearch Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Ms Nerida Cooley |
Place: | Perth |
Date: | 14 September 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – expedited procedure objection applications dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 148 |
Cases: | David Stock & Others on behalf of the 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’) |
| Representative of the native title party: | Shaz Rind, Arra Group |
| Representative of the grantee party: | Susan Persichitti, IGO Newsearch Pty Ltd |
| Representative of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
This is a decision to dismiss expedited procedure objection applications in relation to the proposed grant of exploration licences E80/5588 and E80/5610 (licences) to IGO Newsearch Pty Ltd (IGO).
The State of Western Australia (State) considers the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (NTA) and included a statement to that effect in notices given under s 29 of the NTA.
Gooniyandi Aboriginal Corporation RNTBC (Gooniyandi) holds non-exclusive native title on trust on behalf of the Gooniyandi People in relation to 4.16% of E80/5888 and 27.07% of E80/5610 (see Sharpe v Western Australia). On 19 October 2021, Gooniyandi lodged objections with the Tribunal against the application of the expedited procedure to the grant of each licence.
Relevant Facts
In accordance with the Tribunal’s current practice, I made directions for the conduct of the inquiry in each matter, to commence following the closing date for the objections. Under those directions, Gooniyandi’s material was to be provided by 31 January 2022 for E80/5588 and by 21 February 2022 for E80/5610.
A preliminary conference for both matters was held on 4 November 2021. Gooniyandi did not appear, but IGO indicated its intention to resolve the objections by agreement with Gooniyandi, preferably by way of a deed of variation to an existing agreement. At that conference, the directions timetables were aligned, with Gooniyandi’s material for both matters due on 21 February 2022.
Further conferences were held on 16 December 2021 and 27 January 2022. Gooniyandi did not appear on either occasion, despite the December conference being rescheduled at its request. On the second occasion, IGO passed on the Gooniyandi representative’s apologies.
At the December 2021 conference, IGO’s representative, Ms Persichitti, indicated IGO was planning to meet with Gooniyandi the next day. She advised that Gooniyandi had asked IGO to enter into a new agreement, rather than proceed by way of a deed of variation, and that IGO was open to that path. However, at the January 2022 conference, Ms Persichitti advised that, while the planned meeting did not go ahead, it now appeared the parties would include the licences in the existing agreement. IGO noted the parties planned to meet on 7 February 2022 to resolve matters.
On 30 January 2022, the State provided its initial material for the inquiry. Gooniyandi did not comply by its due date of 21 February 2022, nor did it seek any extension of time. On 28 February 2022, the Tribunal wrote to parties advising that the objections were at risk of dismissal under s 148(b) of the NTA and inviting comments by 7 March 2022.
Gooniyandi subsequently requested an extension of time to allow it to meet with IGO at its next board meeting in April 2022, following which it expected Gooniyandi would be in a position to withdraw the objections. I extended the due date for Gooniyandi’s compliance to 29 April 2022 to allow time for that meeting to occur.
Once again, Gooniyandi failed to comply by the due date or seek an extension and, on 10 May 2022, the Tribunal again wrote to parties advising that the matters were at risk of dismissal under s 148(b) of the NTA. In response, Gooniyandi apologised for not providing an update and advised it had communicated with IGO (on 25 April 2022) following the Gooniyandi board meeting on 22 April 2022. Gooniyandi explained that it was awaiting a response from IGO regarding the addition of the licences to the existing agreement and its proposal for addressing an important men’s site in the area. It asked that the objections not be dismissed and noted its intention to seek an extension.
The State sought dismissal of the objections, noting this was not the first time the matters had been at risk of dismissal and that Gooniyandi had not requested an extension until after the Tribunal first advised the matters were at risk of being dismissed. IGO supported Gooniyandi’s request, noting it proposed to attend the next Gooniyandi board meeting, although Gooniyandi would need to advise a date for that meeting. Gooniyandi then advised that the next board meeting had been moved due to sorry business and would now be in June 2022.
To allow time for the next board meeting to occur, I further extended Gooniyandi’s date for compliance to 30 June 2022 but put Gooniyandi on notice that if it did not comply or otherwise resolve the objections by 30 June 2022, they would be considered for dismissal. On 29 June 2022, Gooniyandi confirmed IGO had attended the board meeting the previous week, asked that the matters not be dismissed while the parties were finalising the amendment agreement and said it proposed to provide a further update by 15 July 2022.
The following day, IGO advised it was reviewing the final version of the draft agreement and that it expected final agreement would be reached by the end of July 2022, such that Gooniyandi would then be in a position to withdraw the objections. IGO requested the matters be moved to the settlement list to allow this to occur. As the parties had not reached in principle agreement, the matters were not ready for the settlement list. However, I agreed to defer consideration of the dismissal until after the end of July on the basis of IGO’s expectation that final agreement would be reached by that time.
The Tribunal sought a further update from the parties on 21 July 2022. IGO responded to advise that it would be returning an amended draft agreement to Gooniyandi on 26 July 2022 and remained hopeful the parties would be able to settle the terms of the agreement by the end of that week. No response was received from Gooniyandi.
On 15 August 2022, the Tribunal inquired as to whether parties had settled the terms as expected. On 19 August 2022, IGO responded to advise it had provided comments on the draft agreement to Gooniyandi on 28 July 2022 and was awaiting a response. Clearly the negotiations were ongoing but there was no sign of a timely conclusion.
In light of these updates, the Tribunal advised parties that I would proceed to consider the dismissal of the objection applications as previously foreshadowed. Gooniyandi responded on 23 August 2022 to note that the Gooniyandi board was meeting in the week of 29 August 2022 and that Gooniyandi still expected the parties to reach agreement. There has been no further communication from the parties about the status of the agreement since that time.
Consideration of Dismissal
The Tribunal has a broad discretion under s 148(b) of the NTA to 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 of the Tribunal.
The Tribunal’s role in relation to an expedited procedure objection application is to determine whether or not the expedited procedure applies to the grant of a tenement. Native title parties and grantee parties often seek to resolve an objection by agreement and some latitude may be given for that to occur, particularly where the parties can agree in an expeditious way.
In this case, Gooniyandi and IGO appear to have a constructive relationship and one might expect the fact that they were looking to utilise an existing agreement would have facilitated a timely resolution. I am not privy to the reasons why that has not occurred, but those parties have been afforded a more than reasonable period of time to reach agreement.
These objections were lodged nearly 12 months ago and it is for Gooniyandi, as the native title party, to take steps to progress the objection applications within a reasonable timeframe if it wishes to pursue them (see s 148(b) NTA and Stock v Giralia at page 7).
In this case Gooniyandi’s focus has been on reaching an agreement with IGO and there is no evidence it has taken any steps to progress its objection applications and prepare for the inquiry. While I understand and support the parties’ desire to reach agreement, the objections cannot remain on foot indefinitely while the parties continue to negotiate.
Having regard to all the facts and circumstances of this matter, I am satisfied that these applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of either licence is an act attracting the expedited procedure.
Decision
The expedited procedure objection applications in relation to exploration licences E80/5588 and E80/5610 are dismissed under s 148(b) of the NTA.
Ms Nerida Cooley
Member
14 September 2022
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