Kevin Allen & Others on behalf of Njamal and Warren Ayres and Another

[2017] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal and Warren Ayres and Another [2017] NNTTA 46 (4 August 2017)

Application No: WO2017/0211

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 -

Warren Ayres

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	4 August 2017

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 Act1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Representative of the native title party:	Ms Karen Hearn, Indigenous Services Pty Ltd

Representative of the grantee party: Mr Warren Ayres

Representatives of the Government party:

Mr Michael McMahon, Department of Mines and Petroleum

Ms Bethany Conway, Department of Mines and Petroleum (now the Department of Mines, Industry Regulation and Safety)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 30 November 2016, 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 P46/1921 to Warren John Ayres without requiring Mr Ayres 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 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 Mr Ayres.

3. On 27 March 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 10 May 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 State was directed to provide evidence and documents on or before 24 May 2017. 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 21 June 2017.

2. On 28 June 2017, the State representative requested an amendment to the compliance dates. No party objected and I granted an extension and amended directions accordingly. The Njamal claim group’s revised compliance date to provide a statement of contentions, documentary evidence and witness statements was on or before 14 July 2017.

3. Neither contentions nor evidence were received from the Njamal claim group by 14 July 2017. On 20 July 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.

4. On 24 July 2017, the Tribunal wrote to the representative of the Njamal claim group and contacted Mr Ayres by phone, asking the parties to respond to the State’s request to dismiss the objection. Parties were given until 27 July 2017 to respond. Mr Ayres advised he supported the request.

5. The Tribunal did not receive any further communication from the Njamal claim group in regards to the request for dismissal, or any other matter relating to this objection.

6. 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.

7. 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 P46/1921 is dismissed according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
4 August 2017