Gooniyandi Aboriginal Corporation v Paul Winston Askins
[2019] NNTTA 3
•6 February 2019
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Aboriginal Corporation v Paul Winston Askins and Another [2019] NNTTA 3 (6 February 2019)
Application No: | WO2018/0269 |
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 (WCD2013/003)
(native title party)
- and –
Paul Winston Askins
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 6 February 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, 148(b) |
| Cases: | Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) |
| Representative of the native title party: | Tania Smith, Gooniyandi Aboriginal Corporation |
| Representative of the grantee party: | Paul Askins |
| Representatives of the Government party: | Ms Bethany Conway and Mr Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 22 December 2017, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E04/2499 to Paul Winston Askins. The area of the proposed licence is overlapped by the Gooniyandi Combined #2 determination, as represented by the Gooniyandi Aboriginal Corporation Registered Native Title Body Corporate (the Corporation).
By including the expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without negotiation between the Corporation, the State and Mr Askins.
On 20 April 2018, the Corporation lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. To answer the question of whether the licence can be granted in such an expedited way, I was appointed to be the Member conducting the inquiry in this matter.
Should the inquiry proceed or should the matter be dismissed?
On 17 October 2018, following consideration of a request from the State to set inquiry dates due to the age of the matter, I made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant. The Corporation was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 28 November 2018. Neither contentions nor evidence were received from the Corporation.
On 5 December 2018, the State requested the objection application be dismissed, as the Corporation had not complied with the Tribunal’s directions. The Tribunal wrote to all parties on 5 December 2018 requesting the Corporation and Mr Askins to provide a response outlining any reasons why the objection should not be dismissed.
The Corporation’s representative wrote to the Tribunal and all parties on 6 December 2018, indicating they were of the view that agreement was possible, and they would seek further instructions. The Corporation wrote a lengthier email to the Tribunal and all parties on 12 December 2018, explaining their view of the course of the negotiations, and requesting an extension. Mr Askins wrote to the Tribunal and all parties the same day, disagreeing with the Corporation’s view, and outlining his own view. It is not particularly helpful to outline the content of those communications, save to say there appeared to be no prospect of parties reaching agreement and dispensing with the objection to the grant of this licence that way. The Corporation submitted part of the reason for their non-compliance was they are an emerging independent Registered Native Title Body Corporate and receive little funding.
On 13 December 2018, and based on the Corporation’s circumstances, I wrote to all parties, and granted a short extension to their compliance date, rather than dismissing the matter, as follows:
Where the State considers the act attracts the expedited procedure, and includes that in the s 29 notice, this is not necessarily a period for negotiating (as negotiation is regulated by s 31 of the Native Title Act). The expedited procedure provisions in s 32 take effect, and the native title party has no right and the other parties have no obligation to negotiate in the course of the expedited procedure process. The Tribunal recognises at a practical level that parties are often in a position where they can reach agreement, and then the objection is withdrawn or otherwise concluded, without the need for an inquiry process. That does not seem to be the case in this matter.
Parties need to be aware that once matters come before the Tribunal, in the expedited procedure, the only functions of the Tribunal under the expedited procedure provisions are to accept an objection if it complies with s 76 and, having done so, to determine whether or not the expedited procedure is attracted. If it determines that it is, the State may do the act. If it determines that it is not attracted then, and only then, does the right to negotiate arise. The expedited procedure process has then been completed.
Member Shurven will extend the native title party compliance date until Wednesday 19 December 2018. All other party dates are extended accordingly. If there is no compliance from the native title party on or by 19 December, the matter will go to the Member for dismissal.
Later on 13 December 2018, Mr Askins wrote to the Tribunal and all parties, objecting to the extension granted. The Tribunal wrote back to all parties, confirming the extension would stand, that I needed to balance the rights and interests of all parties in considering whether or not to grant such, and reiterating that:
All parties are now aware this matter is at grave risk of dismissal if there is non- compliance by the native title party on or by 19 December 2018
On 19 December 2018, the CEO of the Corporation wrote to the Tribunal and all parties, confirming that the Gooniyandi Aboriginal Corporation will be entering into a form of heritage protection agreement with Mr Askins in the new-year. They also advised, on that basis, they would take steps to withdraw the objection. The Tribunal did not receive any dissenting communication from parties, and the matter remained on foot, pending withdrawal of the objection.
On 1 February 2019, the Tribunal wrote to all parties advising the objection did not appear to have been withdrawn, and the matter again would be put before me for dismissal if there was no further communication as to the status of the objection. No further communication was received.
As such, 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 been given sufficient opportunity to comply with the directions or withdraw the objection, 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
The objection application against exploration licence E04/2499 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).
Ms Helen Shurven
Member
6 February 2019
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