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

[2017] NNTTA 73

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal v Baracus Pty Ltd and Another [2017] NNTTA 73 (3 November 2017)

Application No: WO2017/0033

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 -

Baracus Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	3 November 2017

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

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

Representative of the Government party: Mr Michael McMahon, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 21 September 2016, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E45/4778 to Baracus Pty Ltd (Baracus), without requiring Baracus or the State to negotiate with the Njamal native title claim group (Njamal claim group). The area of the exploration 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 Baracus.

3. On 20 January 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 11 August 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 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 September 2017. Parties were advised the objection may be dismissed if the objector were to fail to progress the application or comply with a direction of the Tribunal within a reasonable time. The Njamal claim group did not provide contentions or evidence, or make any request for further time to provide the requisite documents.

2. On 3 October 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. On 4 October 2017, the Tribunal wrote to the representatives of the Njamal claim group and Baracus, asking them to respond to the State’s request to dismiss the objection. Parties were given until 11 October 2017 to respond. On 5 October 2017, the Njamal claim group wrote to the Tribunal and all parties requesting a two-week extension for their compliance with directions, on the basis of intending to work with Baracus toward resolving the objection by agreement. The request was granted and Njamal was asked to provide an urgent update by close of business on Monday, 30 October 2017 regarding progress towards an agreement.

3. The Njamal claim group was advised that if ‘no update is provided, or agreement is not imminent, the Member will grant a further extension until Wednesday, 1 November 2017 for the Native Title Party to comply. No further extensions will be given unless agreement is imminent, and non-compliance puts the matter at risk of immediate dismissal’. The Tribunal received no further communication from any 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. In the circumstances, the Njamal claim group had 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 E45/4778 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
3 November 2017