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

[2018] NNTTA 67

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Ors on behalf of Nyamal #1 v David Alan Perkin/Brett Alan Perkin [2018] NNTTA 67 (01 November 2018)

Application No: WO2018/0546

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/Brett Alan Perkin

(grantee party)

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State of Western Australia
(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms H Shurven

Place:

Perth

Date:

1 November 2018

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) ss 29, 148(b)

Native Title Amendment Bill 1997 [No. 2]

Cases:

Teelow v Page [2001] NNTTA 107; 166 FLR 266
David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Mr Jamie Haynes, Indigenous Services Pty Ltd

Representative of the grantee party: Mr David Perkin

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

REASONS FOR DETERMINATION

Background

1. On 21 March 2018, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P46/1933-S to David Alan Perkin/Brett Alan Perkin. The area of the proposed licence is wholly overlapped by the Nyamal #1 claim group’s native title claim (WC1999/008). By including an expedited procedure statement in the public advertisement of the licence, the State asserted that the grant can be made without requiring the grantees, David Alan Perkin and Brett Alan Perkin, or the State to negotiate with the Nyamal #1 claim group.

2. On 19 July 2018, the Nyamal #1 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, Mr John Dowsett AM, to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 24 August 2018, Mr David Perkin requested the matter be programmed for inquiry.  On 29 August 2018, 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. These directions were sent to all parties on 30 August 2018.  The Nyamal #1 claim group were directed to provide a statement of contentions, documentary evidence and witness statements for the objection application, verified where possible by affidavit, on or before 10 October 2018.

2. The State complied with directions on 12 September 2018, and sent their information to all parties.  The Nyamal #1 claim group did not provide contentions or evidence by 10 October 2018, or request further time to provide any documents.  On 23 October 2018, the State wrote to the Tribunal and all parties, requesting the objection be dismissed on the basis that the Nyamal #1 claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 23 October 2018, the Tribunal wrote to the representatives of the Nyamal #1 claim group and Mr David Perkin, and gave them until 30 October 2018 to respond to the State’s request to dismiss the objection. No response was received from either party.   

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. 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. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia Resources NL, Deputy President Franklyn QC stated (at page 6):

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection

5. Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):

   27.10b    Replacement item 40 inserts new section 148 which states that the NNTT has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with NNTT directions. 
   27.10c    …These limited provisions will assist the NNTT to more efficiently and appropriately manage its processes…

6. As at the date of this determination, no response has been received from the Nyamal #1 claim group 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. In the circumstances, the Nyamal #1 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 prospecting licence P46-1933-S is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member
1 November 2018