Kevin Allen & Others on behalf of Njamal and Baracus Pty Ltd and Another

[2018] NNTTA 29

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal and Baracus Pty Ltd and Another [2018] NNTTA 29 (11 May 2018)

Application No: WO2017/0508

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 & Others on behalf of Njamal (WC1999/008)

(native title party)

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Baracus Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	11 May 2018

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, 31, 32, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Representative of the native title party:	Mr Jamie Haynes, Njamal Heritage Pty Ltd

Representative of the grantee party: Mr Matthew Clohessy, Emerald Tenement Services

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 8 March 2017, the State Government of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E45/4776 to Baracus Pty Ltd (Baracus), without requiring Baracus or the State to negotiate with the Njamal native title claim group (the Njamal claim group). The area of the proposed licence 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 that the grant can be made without such negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Njamal claim group, the State, and Baracus.

3. On 8 July 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 E45/4776. To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the then President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matters be dismissed?

1. On 10 August 2017, the Njamal claim group’s then representative advised the Tribunal and all parties that their preferred heritage agreement had been provided to Baracus for their consideration in this matter. As this matter is in the expedited procedure, there is no obligation on parties to negotiate as provided by s 31. Instead, the expedited procedure provision of the Act (s 32) takes effect. The native title party has no right and the other parties have no obligation to negotiate in the course of the expedited procedure process. That process provides for the lodgement of an objection by the native title party (s 32(3)), and the native title party has lodged such an objection in this matter.

2. Once matters come before the Tribunal, in the expedited procedure, the only functions of the Tribunal under the expedited procedure provisions are to accept an objection if it complies with s 76 and, having done so, to determine whether or not the expedited procedure is attracted. If it determines that it is, the State may do the act. If it determines that it is not attracted then, and only then, does the right to negotiate arise. The expedited procedure process has then been completed. It follows that consideration of a right to negotiate is not relevant to the determination under s 32.

3. In saying this, the Tribunal also recognises that, in practical terms, parties often do reach agreement, allowing the objection application to be withdrawn, or some mechanism of resolution other than a Tribunal decision being imposed on parties.  It is made clear to parties in communications from the outset though, that they will be expected to comply with dates set by the Tribunal to advance the expedited procedure application inquiry.  Parties are also advised, in a Statement of Expectations, that ‘non-compliance with directions could lead to dismissal of the objection application’.  It is noted in this matter that the Statement of Expectations went to a representative for the Njamal claim group who was no longer on the record in March 2018.

4. It is not clear the extent of any handover from the previous representative to the new representative, Mr Haynes. Neverthless, Mr Haynes attended a status conference, which included this matter, on 7 March 2018.  As this matter was now approximately 12 months old, and the State had requested dates be set in the absence of an agreement, I made directions at the status conference 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.

5. 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 18 April 2018. The email attaching these directions clearly states: ‘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’.  At the status conference, parties advised that comments on the Njamal claim group agreement had been exchanged, and expressed hope that agreement could be reached prior to the native title party compliance date.  Baracus has subsequently confirmed that contact was made between Baracus and the previous Njamal representative, but no contact was received from Mr Haynes in relation to this matter. 

6. Neither contentions nor evidence were received from the Njamal claim group by the compliance date of 18 April 2018. On 23 April 2018, the State requested 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 the same day, asking for a response on or by 30 April 2018 from the Njamal claim group and Baracus in relation to the dismissal request.  No response was received.  Attempts by the Tribunal at telephone contact with the Njamal claim group representative went to voicemail.

7. On 2 May 2018, the Tribunal wrote to the Njamal claim group and Baracus representatives, requesting parties attend at a directions hearing on 4 May 2018. Attendance could be by way of telephone.  The Tribunal did not receive any response or communication from the Njamal claim group in regards to the request for dismissal, and the Njamal claim group representative was not able to be reached for the directions hearing.

8. On 4 May, immediately after the directions hearing, the Tribunal sent the following email to the Njamal claim group representative and all parties:

   This email is of critical importance to you, and the other parties to the matter have also been copied in.  Multiple attempts have been made by the Tribunal to contact you on this expedited procedure objection.  You have also missed the compliance date for Njamal to provide information and evidence.  Where Njamal have lodged an expedited procedure objection application, as in this case, they must keep to timelines and give the Tribunal and all parties information and evidence about the objection.  It is not possible to simply make no contact with the Tribunal – if you do not make contact, or make your intentions clear about how Njamal wish to proceed, then the expedited procedure objection application is at grave risk of being dismissed. 

   This matter was listed in front of Member Shurven today, 4 May 2018.  You were sent an email about this on Wed 2 May.  You were not able to be contacted.  The State have requested this matter be dismissed.  If the Tribunal has no contact from you by close of business on Monday 7 May, then the Member will consider the matter for dismissal, and most likely will move to dismiss the matter by the end of the week (that is, by Friday 11 May).

   No communication was received from the Njamal representative on 7 May.

9. On 10 May 2018, Baracus requested the objection application be dismissed. The same day the Njamal claim group representative emailed the Tribunal, stating to the practice officer ‘Could you please give me a call. I have left a message for you. Thanks’.  Following a number of attempts to make contact by telephone, contact was made and Mr Haynes advised that he had a number of issues to attend to and a family matter.  No request for extension of compliance dates was made.

10. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). The Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection, and does not dismiss inquiry matters without ensuring relevant parties are provided with the opportunity to provide explanation for any delays or slow responses, or provide explanations for non-compliance, or request extensions to compliance dates. In considering the exercise or non-exercise of the discretion to dismiss under s 148(b) of the Act, the Tribunal may consider a number of issues including the history of the proceedings, the explanation proffered for non-compliance, whether the delay has resulted in prejudice to the parties, the previous conduct of the applicant and whether the inquiry itself raises novel issues.

11. In the circumstances, the Njamal claim group has 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 licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E45/4776 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
11 May 2018