John Graham & Others on behalf of Ngadju v Brooke Louise Strindberg

[2015] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

John Graham & Others on behalf of Ngadju v Brooke Louise Strindberg [2015] NNTTA 31 (17 August 2015)

Application No:                  WO2015/0483

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

John Graham and Others on behalf   (native title party)

of Ngadju (WC1999/002)

-and-

The State of Western Australia    (Government party)

-and-

Brooke Louise Strindberg  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              17 August 2015

Date of reasons:                17 August 2015

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 Act1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page (2001) 166 FLR 266 (‘Teelow v Page’)

Representative of the        

native title party:              Mr Andrew Burke, Goldfields Land and Sea Council

Representative of the        

Government party:            Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party:  Mr Max Strindberg, Abeh Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 28 January 2015, 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 E15/1446 to Brooke Louise Strindberg. The Ngadju People native title claim (subject to a consent determination in November 2014 and awaiting registration of a Prescribed Body Corporate) overlaps the licence by 90.5 per cent.

2. The State has included an expedited procedure clause in the s 29 notice. That is, they say the grant of this licence can be made expeditiously, without the normal negotiation between the Ngadju People and Ms Strindberg, because it will have minimal impact on native title (see s 237).

3. On 27 May 2015, The Ngadju People 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 by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter. 

Should the inqury proceed or should the matter be dismissed?

1. On 16 June 2015, Mr Max Strindberg who is representing Ms Strindberg, advised the Tribunal he wanted this matter to proceed to an inquiry.  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 Ngadju People were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 28 July 2015. 

2. Neither contentions nor evidence were received from the Ngadju People by that date.  On 29 July 2015, the State wrote to the Tribunal, and copied in the representatives of Ms Stringberg and the Ngadju People, requesting the objection be dismissed because the Ngadju People had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 29 July 2015, the Tribunal wrote to the representatives of the Ngadju People and Ms Strindberg, asking them to respond to the State's request to dismiss. No response was received.

4. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. I accept those principles in this inquiry.

5. On 3 August 2015, the Tribunal again wrote to the Ngadju People, advising them that the objection will be dismissed in seven days if they fail to respond to the State's request to dismiss the objection. As at the date of this determination, no response has been received from the Ngadju People as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non compliance.

6. In the circumstances, the Ngadju People have been given sufficient opportunity to comply with directions I set, 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 as I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E15/1446 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member