Kevin Allen & Ors on behalf of Njamal v Mt Stewart Resources Pty Ltd and Another

[2017] NNTTA 62

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Ors on behalf of Njamal v Mt Stewart Resources Pty Ltd and Another [2017] NNTTA 62 (5 October 2017)

Application No: WO2016/0812

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 & Ors on behalf of Njamal (WC1999/008)

(native title party)

- and -

Mt Stewart Resources Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	5 October 2017

Catchwords:	Native title – future act – proposed grant of amalgamation 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] NNTTA 107; 166 FLR 266
Representative of the native title party:	Ms Karen Hearn, Indigenous Services Pty Ltd

Representative of the grantee party: Ms Janet Procak, M & M Walter Consulting

Representative of the Government party: Mr Michael McMahon, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 27 July 2016, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to two grant amalgamation applications to exploration licence E46/794 (AM-46/794 No. 489779 and AM-46/794-489780) to Mt Stewart Resources Pty Ltd (Mt Stewart), without requiring Mt Stewart or the State to negotiate with the Njamal native title claim group (Njamal claim group). The area of the proposed licences is wholly overlapped by the Njamal claim group’s native title claim (WC1999/008).

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without such negotiation. That is, they say the grant of these amalgamation licences can be made expeditiously, without negotiation between the Njamal claim group, the State, and Mt Stewart.

3. On 23 November 2016, 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 licences. To answer the question of whether the licences 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 3 August 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 was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 13 September 2017.  Parties were advised the objection may be dismissed forthwith if the objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal.

2. The Njamal claim group did not provide contentions or evidence, or make any request for further time to provide the requisite documents, by 13 September 2017. On 20 September 2017, the State wrote to the Tribunal and all parties 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.

3. On 20 September 2017, the Tribunal wrote to the representatives of the Njamal claim group and Mt Stewart, asking them to respond to the State’s request to dismiss the objection. Parties were given until 27 September 2017 to respond.  The Tribunal received no further communication from any party concerning the request for dismissal.

4. 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.

5. In the circumstances, the Njamal claim group had 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.

Decision

1. The objection application against amalgamation licences AM-46/794 No. 489779 and AM-46/794 No. 489780 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
5 October 2017