Kevin Allen and Others on behalf of Njamal v Raymond John Thomas Butler and Another

[2017] NNTTA 75

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal v Raymond John Thomas Butler and Another [2017] NNTTA 75 (11 December 2017)

Application No: WO2017/0102

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection  application

Kevin Allen & Others on behalf of Njamal  (WC1999/008)

(native title party)

- and -

Raymond John Thomas Butler

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven
Place:	Perth
Date:	11 December 2017

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
Representative of the native title party:	Ms Karen Hearn, Indigenous Services Australia Pty Ltd

Representative of the grantee party:      Mr Hong-Jim Saw, Hetherington Exploration and Mining Title
     Services Pty Ltd 

Representative of the Government party:      Ms Bethany Conway, Department of Mines, Industry Regulation
     and Safety

REASONS FOR DETERMINATION

Background

1. On 5 October 2016, 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 E46/1143 to Raymond John Thomas Butler. The area of the proposed licence is wholly overlapped by the Njamal claim group’s native title claim (WC1999/008). By including an expedited procedure statement in the public advertisement of the licence, the State asserted the grant could be made without requiring Mr Butler or the State to negotiate with the Njamal claim group.

2. On 3 February 2017, the Njamal claim group 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 inquiry proceed or should the matter be dismissed?

1. On 27 September 2017, 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 Njamal claim group were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 8 November 2017. 

2. The Njamal claim group did not provide contentions or evidence, or request further time to provide the requisite documents, by 8 November 2017. On 9 November 2017, the State wrote to the Tribunal, requesting the objection be dismissed on the basis that the Njamal claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.  The Tribunal wrote to all parties, asking them to respond to the State’s request to dismiss the objection. No response was received from the Njamal claim group and Mr Butler’s representative indicated he had no comment to make on the dismissal request.  On 27 November 2017, all parties were advised that a dismissal decision was being drafted for my consideration.

3. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is 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.

4. As at the date of this determination, the Tribunal has received no response from the Njamal claim group as to why the objection should not be dismissed.  Nor has the Tribunal received any request for an extension of directions or been provided with any reason for the Njamal claim group’s non-compliance.

5. In the circumstances, the Njamal claim group have been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licences can be granted in an expedited way because I have concluded the objection should be dismissed.

Determination

1. The objection application against exploration licence E46/1143 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member
11 December 2017