Jaru Aboriginal Corporation RNTBC v Northern Minerals Limited
[2022] NNTTA 37
•24 May 2022
NATIONAL NATIVE TITLE TRIBUNAL
Jaru Aboriginal Corporation RNTBC v Northern Minerals Limited & Another [2022] NNTTA 37 (24 May 2022)
Application No: | WO2019/0055; WO2019/0056; WO2020/0256 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
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 Nerida Cooley |
Place: | Brisbane |
Date: | 24 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, 30, 141, 148 |
Cases: | David Stock & Others on behalf of Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (‘Stock v Giralia’) Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 (‘Jaru Determination’) Teelow v Page and Another [2001] NNTTA 107; (2001) 166 FLR 266 (‘Teelow v Page’) |
| 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/Jake Lincoln, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
This is a decision to dismiss expedited procedure objection applications relating to the proposed grant of exploration licences E80/5260, E80/5261 and E80/5418 (licences) to Northern Minerals Limited (Northern Minerals).
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 in 2018, or 2019 in the case of E80/5418.
The majority of E80/5260 and E80/5261, and a small portion of E80/5418 are situated within the area of the Jaru Determination. On 17 January 2019, the registered native title claimant for the Jaru native title determination application (WAD45/2012) (Jaru Claimant), which was then the relevant native title party, lodged objections against the application of the expedited procedure to the grant of E80/5260 and E80/5261. On 6 March 2020, the Jaru Claimant also lodged an objection against the application of the expedited procedure to the grant of E80/5418.
Subsequently, on 8 June 2021, the Jaru Determination was entered on the National Native Title Register. At that time, Jaru Aboriginal Corporation RNTBC (Jaru RNTBC), which holds native title in trust for the Jaru People, became a native title party with respect to the licences and a party to the objection applications (ss 30(1)(b) and 141(2A) NTA). The Jaru 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) NTA).
Relevant facts
These matters have had a long and circuitous history, which is not necessary to recite in full.
Directions for the conduct of the inquiry in relation to whether the expedited procedure applies to the grant of E80/5260 and E80/5261 were originally made on 29 August 2019, following a period of case management during which the parties sought to reach an agreement.
On 25 October 2019, being the day after the native title party’s material was due, the matters were moved to the Tribunal’s settlement list on the basis that the Jaru Claimant and Northern Minerals had agreed to the terms of a deed of variation to add E80/5260 and E80/5261 to an existing agreement.
On 12 March 2020, I made directions for the conduct of the inquiry with respect to the Jaru Claimant’s objection for E80/5418. However, on 26 March 2020, parties were excused from complying with those directions in accordance with the Tribunal’s directions made in response to the COVID-19 pandemic.
Later, in July 2020, the objection application with respect to E80/5418 was also moved to the Tribunal’s settlement list so that all matters could be dealt with together.
Between October 2019 (or in the case of the objection regarding E80/5418, July 2020) and September 2021, these matters remained on the Tribunal’s settlement list in order to monitor the parties’ progress towards execution of the agreement.
On one occasion during that period, on 4 February 2021, the matters were listed for a conference before me. However, I returned the matters to the settlement list because the Jaru Claimant advised that the meetings necessary to finalise execution had been arranged, including a meeting of all members of the Jaru Claimant scheduled for the week commencing 29 March 2021.
While the delays encountered by the parties initially related to the execution of the deed of variation (including delays arising from COVID-19), from mid-2021 the parties’ attention turned to the means of assigning the existing agreement to Jaru RNTBC. There were evidently legal technicalities which arose in that process and led to further delay.
Eventually, in September 2021, due to the age of the matters, the State requested that they be referred back to me, rather than remain on the settlement list.
I heard the matters on 30 September 2021. At that conference, the representatives of Jaru RNTBC and Northern Minerals indicated that a way forward had been identified by the parties’ representatives. It was expected that Jaru RNTBC would be in a position to provide instructions, execute the relevant deed and withdraw the objections following a meeting planned for October 2021 or, at the very latest, at Jaru RNTBC’s annual general meeting in November 2021. In light of that advice, and with the agreement of all parties, I adjourned the matters to 9 December 2021. However, I foreshadowed that if the objections were not resolved by that time I would reinstate directions for the inquiry.
Needless to say, things did not go to plan.
When the objections came back before me on 9 December 2021, Northern Minerals advised that it understood Jaru RNTBC had not agreed to the proposed approach to resolution and the parties were now considering an alternative way forward. I noted the considerable age of the objections and indicated that directions had not been reinstated to date solely because of the expected resolution by November 2021. Given the upcoming holiday season and the native title party’s law time commitments, I adjourned the matters to 20 January 2022, when directions would be made for the conduct of the inquiry.
On 20 January 2022, Jaru RNTBC advised that it was in the process of preparing a heritage protection agreement at the same time as it sought to execute a deed of assignment. It expected the agreement would be executed at a meeting scheduled for 23 February 2022. Jaru RNTBC asked to be afforded four weeks from the date of that meeting to prepare its material for the inquiry. I made directions on that basis, with the native title party’s material being 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. With the consent of all parties, an extension was granted to 4 May 2022. However, Jaru RNTBC was advised that, in the event that it did not comply by that date, or withdraw the objections, the objections would be considered for dismissal without further notice.
In the event, Jaru RNTBC did not comply with the Tribunal’s directions and the objections remain on foot.
Consideration of dismissal
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 a timely way.
Ultimately however, where they cannot, the inquiry must proceed. The Tribunal has previously observed that it is for the native title party to take steps to progress its application within a reasonable period (see Stock v Giralia at page 7).
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. Teelow v Page sets out a number of general principles which may be relevant to the dismissal of objection applications for a failure to comply with directions (at [13]). I have considered those principles but the circumstances here are somewhat unusual and these matters turn very much on their own facts.
I am of course mindful of the consequences of dismissal for the native title party’s procedural rights. However, by no objective standard could it be said that the Tribunal has rushed to the dismissal of these matters. The objections in relation to E80/5260 and E80/5261 have been on foot for over three years and the objection against E80/5418 was lodged over two years ago.
In light of the existing agreement between the Jaru Claimant and Northern Minerals, those parties have been afforded every reasonable opportunity to resolve the practical and technical issues which have arisen, in order to resolve the matters by agreement, rather than proceed to inquiry. For whatever reason, despite the parties’ efforts, none of the options for resolution have yielded results.
Even after directions were reinstated in January 2022, Jaru RNTBC expected resolution at a meeting in February 2022, which again did not occur.
In terms of the inquiry, Jaru RNTBC has been on notice at least since directions were reinstated on 20 January 2022 that it was required to comply with directions. A further extension was also afforded to take account of the impacts of COVID-19. However, it is not at all evident what steps, if any, Jaru RNTBC has taken to prepare contentions and evidence. Its focus appears to have remained on the agreement.
That may be understandable and it of course remains open to Jaru RNTBC and Northern Minerals to continue their efforts to reach agreement. However, the objections cannot remain on foot indefinitely while they do so.
Having regard to all of the facts and circumstances, I am satisfied the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of each licence is an act attracting the expedited procedure.
Decision
The expedited procedure objection applications in relation to exploration licences E80/5260, E80/5261 and E80/5418 are dismissed under s 148(b) of the NTA.
Ms Nerida Cooley
Member
24 May 2022
0
0
0