Kevin Allen & Others on behalf of Njamal and Wodgina Lithium Pty Ltd (formerly A.C.N. 611 488 932 Pty Ltd) and Another
[2018] NNTTA 40
•11 July 2018
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Allen & Others on behalf of Njamal and Wodgina Lithium Pty Ltd (formerly A.C.N. 611 488 932 Pty Ltd) and Another [2018] NNTTA 40 (11 July 2018)
Application No: | WO2016/0813 & WO2016/0814 |
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 -
Wodgina Lithium Pty Ltd (formerly A.C.N. 611 488 932 Pty Ltd) (grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 11 July 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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: | Ms Jemimah Pullin, Mineral Resources |
| 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
On 27 July 2016, 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 licences E45/4762 and E45/4763 to Wodgina Lithium Pty Ltd (formerly A.C.N. 611 488 932 Pty Ltd, and referred to in this decision as Wodgina). The area of the proposed licences are wholly overlapped by the Njamal claim group’s native title claim (WC1999/008).
The grants did not require Wodgina or the State to negotiate with the Njamal claim group, as the State asserted the expedited procedure applied to the grants because the nature of the exploration activities would be low impact, as defined by s 237 of the Act.
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 both licences. To answer the question of whether the licences 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 inquiries.
Should the inquiry proceed or should the matters be dismissed?
On 21 December 2016, the Njamal claim group’s then representative advised the Tribunal and all parties that their preferred heritage agreement had been provided to Wodgina for their consideration in these applications. As the licences are in the expedited procedure, there is no obligation on parties to negotiate as provided by s 31 of the Act. 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 objections.
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. It follows that consideration of a right to negotiate is not relevant to the determination under s 32.
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 of an objection application, that they will be expected to comply with dates set by the Tribunal to advance the application inquiry. Parties are also advised, in a Statement of Expectations, that ‘non-compliance with directions could lead to dismissal of the objection application’. This clarity was provided to all parties throughout the inquiries into the grant of E45/4762 and E45/4763.
These inquiries have had a longer than usual course. Directions were first issued in September 2017. The Njamal claim group have had three different representatives assisting them, one after the other, during the inquiries. In October 2017, directions were amended at the request of their second representative, as Njamal and the explorer indicated they were close to agreement. Amendments to directions were made several times, those requests coming either from the Njamal or Wodgina representative, and both were supportive of each other’s requests. The State, while initially supporting amendment requests, then began to request dismissal of the objection applications, due to non-compliance with directions. Because Wodgina and Njamal indicated they were close to agreement, directions were extended to allow the agreement to be finalised.
On 14 June 2018, another request for direction amendments was made jointly by Wodgina and Njamal. The State forcefully reiterated their request for dismissal, on the basis of the age of the matters. Njamal responded that they only needed three weeks to finalise the agreement. On the basis that the request was made jointly by Wodgina and Njamal, and that agreement appeared to be imminent, one final extension was granted. This extension was granted in the following terms, on 18 June 2018 (emphasis in original):
Member Shurven notes the age of these matters, understands the State’s focus on moving the matter toward finalisation, and thanks the State for the summary of the course of these matters over time. Member Shurven also notes and thanks the native title party for their comments, and notes the grantee supports the extension request on the basis that parties are very close to agreement.
When making decisions about compliance dates and extension requests, the Member weighs up various factors, including ensuring: that there is a just and fair resolution of the matter; that the public interest is served in ensuring matters are finalised in an orderly and timely way; and that an extension or action does not cause undue prejudice or injustice to any party. While case management is important in moving matters to resolution, it should not override a fair and just outcome.
In these two matters, the Member notes a change in representation from the native title party, and that there is active and positive negotiations between the native title party and the grantee party. Should these matters be dismissed, that would cause undue prejudice to the native title party, as their rights and interests derived from the expedited procedure objection applications would fall away. This would outweigh the prejudice to the State if an extension was granted, even taking into account the States timeframes and the need to move matters to resolution. It appears the grantee party is supportive of the extension request and confirms negotiations are moving toward agreement in a positive manner – in the Tribunal’s experience, the relationship between a grantee party and a native title party on any tenement is an important part of exploration.
On this basis, Member Shurven allows the extension request in both matters. The native title party compliance date is now 5 July 2018, with other dates amended also. If the objections are not withdrawn by that date, or otherwise resolved, the native title party needs to be aware that they need to provide the requested contentions and evidence on or by 5 July 2018. The Tribunal cannot keep extending compliance dates indefinitely.
In addition, Member Shurven wishes to bring to the attention of the native title party that in future matters, requests for extensions to compliance dates should be made before the compliance date expires, rather than afterwards. This is not only an important case management principle which will assist all parties manage their large case load, but is also a point of courtesy for all parties and the Tribunal.
No contentions or evidence, nor any response at all, was received from the Njamal claim group on or by the compliance date of 5 July 2018. On 9 July 2018, the State again formally requested the objection applications be dismissed.
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 offered 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.
In the circumstances, the Njamal claim group has been given sufficient opportunity to comply with directions set by the Tribunal or to advise the Tribunal of the course of the matter in terms of whether or not agreement has been reached. Given the State has requested the applications be dismissed a number of times, the fact that parties were put on notice of the need for Njamal to provide contentions or otherwise resolve the matter by 5 July 2018, and the age of these applications, I have concluded the objections should be dismissed, in the interests of ensuring a timely outcome in terms of the State’s ability to deal with tenure in an orderly manner, in the public interest.
Decision
The objection applications against exploration licence E45/4762 and E45/4763 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).
Ms Helen Shurven
Member
11 July 2018
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