Gooniyandi Aboriginal Corporation RNTBC v Ridgecape Holdings Pty Ltd

[2019] NNTTA 48

NATIONAL NATIVE TITLE TRIBUNAL

Gooniyandi Aboriginal Corporation RNTBC v Ridgecape Holdings Pty Ltd [2019] NNTTA 48 (8 July 2019)

Application No: WO2017/0772

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/Goondiyandi Combined #2 (WCD2013/003)

(native title party)

- and -

Ridgecape Holdings Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	8 July 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, 31, 32, 148

Native Title Amendment Bill 1997 [No. 2]

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia)

Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representatives of the native title party:

Shaz Rind
Gooniyandi Aboriginal Corporation  

Representative of the grantee party: Emily Wilson & Mark Gregory
Castledine Gregory

Representatives of the Government party: Bethany Conway, Matthew Smith
Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E80/5095 (the licence) to Ridgecape Holdings Pty Ltd (Ridgecape Holdings). The notice included a statement that the grant of the licence is an act attracting the expedited procedure (see section 32 of the Act).

2. The Gooniyandi Aboriginal Corporation RNTBC (GAC) hold the native title and interests in the licence area on behalf of members of the Gooniyandi community (Gooniyandi Combined #2) as determined in Sharpe v Western Australia.  GAC exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies.

3. In the ordinary course of events, I would conduct an inquiry and decide whether or not the grant of the licence should occur under the expedited procedure. I would consider submissions and evidence provided by parties, in the context of the criteria in s 237 of the Act. GAC argued the expedited procedure should not apply as interference or disturbance of the type outlined in one or more of the criteria in section 237 of the Act is likely. However, in this matter, the State have requested the objection be dismissed, in accordance with s 148(b) of the Act.

4. The dismissal was requested on 20 June 2019, based on a lack of compliance by GAC to the directions I had provided to parties in the course of the inquiry. The request was copied to all parties. Section 148(b) provides:

   The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   …

   (b)the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

5. GAC had been directed to comply with directions on or by 19 June 2019.  This followed a number of extension requests by GAC since directions were first set on 5 September 2018 - the original compliance date was 17 October 2018.  The requests related to, for example, allowing time for: GAC to hold decision making meetings; the community to pay respects and conduct sorry business in relation to the passing of a senior and respected elder; and awaiting responses from the grantee party to draft agreements.  In balancing extension requests, I take into account the reasons provided for granting the request, as well as prejudice to the other parties should the request be granted.  None of the requests made by GAC were contested by the other parties – while this does not necessarily mean an extension request would be granted, it did add weight to my decision to grant the request on each occasion, together with the fact that each request was reasonable in the circumstances.

6. On 6 May 2019, the Tribunal wrote to all parties following a directions hearing, as follows (emphasis in original):

   Member Shurven notes there has been no advance on whether or not agreement is likely.  The Member also notes this is a 2017 matter, and the native title party runs a grave risk of having their objection dismissed if their next compliance date is not met.  This means the native title party must lodge their materials on or by their compliance date, or otherwise resolve the matter by that date (by agreement, or withdrawing the objection).  If no materials are lodged by the due date, or the matter is not otherwise resolved, Member Shurven will consider the native title party’s objection to the expedited procedure for dismissal.

   The native title party is on notice their compliance date has been extended to 24 May 2019, as requested.  This is noting the State’s reluctance to agree to the extended date, but also noting that the native title party has advised a meeting is occurring in May.  To not allow the extension would see a greater prejudice to the native title party, than to the State.  This does not mean this matter will be extended further.

7. On 9 May 2019, GAC wrote to the Tribunal and all parties as follows:

   While we understand and appreciate the position of the parties, in particular the State, the GAC is currently addressing a large work load of outstanding matters due to sorry business and cultural/traditional law obligations.  

   Further the proposed meetings in May 2019 have now been moved.  I am advised the next round of GAC Board meetings are now proposed for week of 3 June 2019 for three days - Tuesday 4, Wednesday 5 and Thursday 6 June 2019 in Fitzroy Crossing.  

   We will take all reasonable and necessary steps to comply and seek instructions.  However, the best use of GAC's limited resources is to invite the Grantee Party to reply to the draft HPA sent to them on 1 November 2018 so we can address it in a meaningful manner, which we have not received any detailed reply to date.

   We hope the parties can resolve this by agreement.   We have not been advised of any urgency and/or "time of the essence" commercial factors?

8. A further directions hearing was held on 17 May 2019, where parties discussed the prospect of reaching agreement.  Parties were reminded that the expedited procedure inquiry process is not intended for extended periods of agreement making, but rather is focused on determining whether or not the expedited procedure applies to the grant of the licence.  At the directions hearing on 17 May 2019, GAC’s compliance date was extended to 19 June 2019.

Considering the dismissal request

1. Parties have been aware, since the communication from the Tribunal sending the initial directions to all parties in September 2018, 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…

2. In considering this dismissal, I have 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 the 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.

1. Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):

   27.10b    Replacement 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. 

   27.10c    …These limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…

2. When the State’s dismissal request was received, parties were given until 27 June 2019 to provide a response.  Ridgecape Holdings indicated on 2 July 2019 they did not have any instructions in relation to the dismissal request.  Nothing was heard from GAC by 27 June, however, on 3 July, GAC responded as follows:

   Our apologies for the slight delay in responding, we were awaiting a response from the Grantee Party, with clear intention is to resolve this by agreement, via heritage protection agreement.
   The Government party is correct [as to the lack of compliance on or by 19 June], however my clients seek to resolve this by agreement with the Grantee Party and as above awaiting a response to progress between the parties.  
   I will need to seek additional instructions and in the interim request an extension?

3. This triggered a strongly worded response from the State, outlining the course of this matter, the various extensions which had been granted, and the ongoing lack of compliance from GAC.  The State reiterated its request for the objection to be dismissed.

4. The Tribunal responded to all parties the same day, as follows (emphasis in original):

   Member Shurven notes the responses from the State and native title party dated today.  As has been made clear by Member Shurven, the expedited procedure objection process is not a process for prolonged negotiation between parties.  The process is not a right to negotiate and the parties are not obliged to negotiate, although if they do reach agreement the objection to the expedited procedure can be resolved by withdrawing the objection.  The onus is on the native tile party to proceed with the objection and provide materials in support of the objection, as outlined since the original directions were made in September 2018.  This matter has been subject to delay and the native tile party have been given many opportunities to provide their materials.
   The matter is now with Member Shurven for consideration for dismissal.  Unless the native title party provides any materials in support of their objection on or by Friday 5 July 2019, the matter will be dismissed.  The native title party is now on final notice of this course of action

5. No materials were provided by GAC by 5 July, nor was any communication received from GAC as at the date of this dismissal.  In the circumstances, GAC has been given sufficient opportunity to comply with directions, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against E80/5095 is dismissed pursuant to s 148(b) of the Act.

Helen Shurven
Member
8 July 2019