Kevin Allen & Others on behalf of Njamal v David John Taylor and Another

[2017] NNTTA 76

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal v David John Taylor and Another [2017] NNTTA 76 (21 December 2017)

Application No: WO2017/0516

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 -

David John Taylor

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven
Place:	Perth
Date:	21 December 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 Act 1993 (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 Australia Pty Ltd

Representative of the grantee party:      Mr David John Taylor

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

REASONS FOR DETERMINATION

Background

1. On 8 March 2017, 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 P45/3033 to David John Taylor. The area of the proposed licence is wholly overlapped by the Njamal claim group’s native title claim (WC1999/008). By including an expedited procedure statement in the public advertisement of the licence, the State asserted the grant can be made without requiring Mr Taylor or the State to negotiate with the Njamal claim group.

2. On 7 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 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 24 October 2017, Mr Taylor requested this matter proceed to inquiry. On that date, 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 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 5 December 2017.

2. The Njamal claim group did not provide contentions or evidence, or request further time to provide the documents, by 5 December 2017. On 7 December 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.

3. On 8 December 2017, the Tribunal wrote to all parties, and gave them until 15 December 2017 to respond to the State’s request to dismiss the objection. No response was received from Mr Taylor or the Njamal claim group.

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.

5. As at the date of this determination, the Tribunal has not received any response from the Njamal claim group as to why the objection should not be dismissed, nor any request for extension of directions or any reason for non-compliance. In the circumstances, the Njamal 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 licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Determination

1. The objection against prospecting licence P45/3033 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member
21 December 2017