Jaru Aboriginal Corporation RNTBC v Northern Minerals Limited
[2022] NNTTA 39
•30 May 2022
NATIONAL NATIVE TITLE TRIBUNAL
Jaru Aboriginal Corporation RNTBC v Northern Minerals Limited & Another [2022] NNTTA 39 (30 May 2022)
Application Nos: | WO2020/0065, WO2020/0066, WO2020/0067 & WO2020/0068 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Jaru Aboriginal Corporation RNTBC (WCD2018/013)
(native title party)
- and -
Northern Minerals Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 30 May 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 148, 237 Native Title Amendment Bill 1997 [No. 2] |
Cases: | David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia) Jaru Aboriginal Corporation RNTBC v Northern Minerals Limited & Another [2022] NNTTA 37 (Jaru v Northern Minerals) Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 (Sturt v Western Australia) Teelow v Page [2001] NNTTA 107; 166 FLR 266 |
| Representative of the native title party: | Maddy Wonders, Kimberley Land Council |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Bethany Conway and Jake Lincoln, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
BACKGROUND
In accordance with s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia gave notice of its intention to grant exploration licences E80/5367, E80/5368, E80/5369 & E80/5370 (the proposed licences) to Northern Minerals Limited (Northern Minerals). The s 29 notice for the proposed licences included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of the 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.
On 21 January 2020, the registered native title claimant for the Jaru native title determination application (WAD45/2012), which was then the relevant native title party, lodged an objection against the application of the expedited procedure to the grant of the proposed licences.
On 8 June 2021, the Jaru native title rights and interests were entered onto the National Native Title Register, following the Federal Court decision in Sturt v Western Australia. At that time, the Jaru Aboriginal Corporation RNTBC, which holds native title in trust for the Jaru People, became a native title party with respect to the licences, and so became a party to the objection applications (ss 30(1)(b) and 141(2A) of the Act). The Jaru native title claimant is no longer a registered native title claimant for the area of the licences, and has ceased to be a relevant native title party (s 30(2) of the Act). For simplicity, I will refer to ‘the native title party’ throughout this decision as being the relevant native title party for the relevant time.
The President of the Tribunal directed me to constitute the Tribunal to conduct this inquiry. It was not necessary for me to determine whether the grant of the proposed licences are acts attracting the expedited procedure, as I have concluded the objections must be dismissed, for the reasons outlined below.
Relevant Facts
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. The matters were moved to the Tribunal’s settlement list in March 2020 on the basis that the native title party and Northern Minerals had agreed to the terms of a deed of variation to add the proposed licences to an existing agreement.
These matters remained on the Tribunal’s settlement list in order to monitor parties’ progress towards execution of the agreement, however, there was little progress. On 19 January 2021, the matters were referred back to me for a case management conference. This was held on 29 January 2021, and directions were issued, on the basis that the matters could not continue on indefinitely while parties worked out their logistical and other issues which had proven to be an impediment to finalising any agreement.
Under these directions, the State complied on 6 April 2021, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 26 April 2021. No materials were provided. The Tribunal wrote to parties on 30 April 2021, noting the native title party compliance had not been received (emphasis in original):
Member Shurven notes the native title party has missed its compliance date in this matter (directions attached).
The matter is now at risk of dismissal.
The Member directs both the native title party and the grantee party to provide a brief update of progress on or by Wednesday 5 May 2021.
On 5 May 2021, the Kimberley Land Council (KLC) provided an update on behalf of the native title party, requesting the matter again be placed on the settlement list. It appeared the matter was close to being resolved, and no party raised an issue with that course of action.
On 12 May 2021, the Tribunal wrote to all parties:
The Member confirms these matters can go on the settlement list for 25 May 2021, and also allows an extension on the directions to 31 May 2021.
On 4 June 2021 the Tribunal wrote to all parties:
Member Shurven has noted the circumstances of this matter, and that there is a high likelihood of the matter being resolved at the Jaru meeting on 12 July 2021. In the circumstances, and given the grantee appears content to wait for the outcome of that meeting, the Member does not consider it would be the best use of parties time and resources to pursue information for contentions and submissions at this stage. In saying that, the Member also reminds parties this is an expedited procedure, and so the matter cannot be extended indefinitely.
On the basis that parties should be prepared to lodge materials if the matter is not resolved at the 12 July meeting, the Member extends the directions so that the native title party compliance date is 30 July 2021. Given the length of extension, it is highly unlikely further extensions will be granted.
No submissions were received and on 2 August 2021 the Tribunal wrote to all parties:
The native title party has failed to comply with directions on or by 30 July 2021 - no request for extension or reasons for compliance being missed have been provided.
If parties are intending to reach agreement, or need further time to execute an agreement, they should advise the Tribunal of such on or by Friday 6 August 2021 and the Member will consider all parties views.
If no further information is provided by that date, this matter will be referred to Member Shurven for dismissal shortly thereafter
On 2 August 2021, the State wrote to the Tribunal requesting the matters be dismissed pursuant to s 148(b). On the same day, KLC provided an update requesting the matters be aligned with like matters which were also on the settlement list. These matters have recently also been the subject of a dismissal decision by Member Cooley in Jaru v Northern Minerals. In light of the update, the State withdrew the request for dismissal and supported the matters being placed on the settlement list for 31 August 2021.
Again, little progress was made towards agreement, and directions were re-issued with the native title party compliance due on 23 March 2022. On 23 March 2022, the native title party sought a six week extension for the purpose of continuing negotiations and due to an inability to travel to parts of the Kimberley as a result of the COVID-19 outbreak in Western Australia. An extension was granted to 6 May 2022. The native title party was advised that, in the event of non-compliance by that date, or withdrawal of the objections, the objections would be considered for dismissal without further notice.
The native title party did not comply with the Tribunal’s directions or provide any response by 6 May 2022.
Consideration of dismissal
In considering this dismissal, 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 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.
Having not complied with directions to provide such materials, or communicated with the Tribunal about why they have not done so, I consider these objection applications should be dismissed. Parties are on notice from the initial notification of an objection application to all parties that dismissal is a consequence should the objections fail to be progressed in a timely manner. These matters had an unusually long course, where the rights and interests of parties in pursing an agreement were balanced against consideration of the inquiry being in an expedited procedure context. There is nothing stopping the native title party and Northern Minerals continuing to negotiate toward an agreement.
Determination
The expedited procedure objection applications in relation to E80/5367, E80/5368, E80/5369 and E80/5370 are dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
30 May 2022
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