Kevin Allen & Ors on behalf of Nyamal #1 v David Alan Perkin

[2019] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Ors on behalf of Nyamal #1 v David Alan Perkin [2019] NNTTA 42 (21 June 2019)

Application No: WO2019/0212

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

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

Kevin Allen & Ors on behalf of Nyamal #1 (WC1999/008)

(native title party)

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David Alan Perkin

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	The Hon John Dowsett AM, QC President
Place:	Brisbane
Date:	21 June 2019

Catchwords:	Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) s 29, 31, 32, 75-77 148(b), 233, 237
Representative of the native title party:	Mr A Truscott of Arma Legal

Representative of the grantee party: Mr D Perkin

Representatives of the Government party: Mr M Smith and Ms B Conway of Department of Mines, Industry Regulation and Safety

BACKGROUND

1. On 7 May 1999, Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor and Jean Walker (collectively the “applicant”) applied for a native title determination pursuant to the Native Title Act 1993 (Cth) (the “Act”). On 3 June 1999, the claim was entered in the Register of Native Title Claims.

2. On or before 14 November 2018, the State of Western Australia (the “State”) gave notice (the “notice”) to the applicant, under s 29 of the Act that it intended to grant prospecting licence P46/1945-S (the “proposed grant”) to David Alan Perkin (the “proposed grantee”). In the notice, the State asserted that the proposed grant attracted the expedited procedure. See s 29(7). Section 31 confers upon native title parties the right to make submissions concerning such a proposed grant and to negotiate in good faith with the State and the proposed grantee. However, where the State asserts that the expedited procedure applies, native title parties have no such rights, unless they successfully object pursuant to s 32 of the Act. The applicant’s claim area overlaps the whole of the area of the proposed grant. On 13 March 2019, the applicant lodged an objection pursuant to s 32(3) of the Act.

3. The proposed grant would be a future act as defined in s 233 of the Act. A future act will attract the expedited procedure if it satisfies the requirements of s 237 which provides that such act:

   (a) … is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b) … is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c) … is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

4. On 3 April 2019, the proposed grantee asked that the Tribunal inquire as to whether the expedited procedure was attracted.  On 4 April 2019, I directed that on or before 16 May 2019, the applicant provide a statement of contentions and supporting documents.  On 5 April 2019, the Tribunal advised the parties of the direction, indicating that:

   Parties are asked to note:

   •     if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application; and

   …

5. The applicant has not complied with that direction. On 21 May 2019 the State sought dismissal of the objection application pursuant to s 148(b) of the Act. Section 148 provides:

   The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   (a) the Tribunal is satisfied that it is not entitled to deal with the application; or

   (b) the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

6. Section 32 refers to an “objection” rather than an “application”. However ss 75‑77 regulate the making of such an objection, referring to it as an “application”. It follows that s 148(b) applies for present purposes.

7. On 21 May 2019, the Tribunal notified the proposed grantee and the applicant as follows:

   The Tribunal has received a request from the State to dismiss this objection under s148(b) of the Native Title Act 1993 (Cth) as the native title party has failed to provide contentions and evidence by their due date of 16 May 2019, and no request to extend this date has been received.

   Could parties please provide any responses to this request by no later than COB Tuesday, 28 May 2019.  This request and any responses will then be put to President Dowsett for his consideration and parties will be advised of the outcome in due course.

8. The applicant has not responded.  I am satisfied that it has had reasonable time in which to comply with the direction and to respond to the State’s application.  The applicant has therefore failed to comply with a direction of the Tribunal.

9. Whilst the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences for the native title party.  It is not a step which should be taken lightly.  Had the applicant explained the delay as best it could, and sought an extension of time in which to comply with the direction, it may well have been appropriate to grant such extension.  However the applicant has simply failed to respond to the Tribunal’s correspondence concerning its default.  Having regard to all of the facts and circumstances of this matter I am satisfied that the application should be dismissed.  Accordingly, it is not necessary that I determine whether the proposed grant would attract the expedited procedure.  The objection application is dismissed.

DECISION

1. The objection application is dismissed pursuant to s 148(b) of the Act.

The Hon John Dowsett AM, QC
President
21 June 2019