Kevin Allen & Others on behalf of Njamal v Peter Romeo Gianni and Another

[2017] NNTTA 66

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal v Peter Romeo Gianni and Another [2017] NNTTA 66 (27 October 2017)

Application No: WO2017/0354

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 -

Peter Romeo Gianni

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	27 October 2017

Catchwords:	Native title – future act – proposed grant of amalgamation 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 Peter Romeo Gianni

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 11 January 2017, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E45/4803 to Peter Romeo Gianni, without requiring Mr Gianni or the State to negotiate with the Njamal native title claim group (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 this licence can be made expeditiously, without negotiation between the Njamal claim group, the State, and Peter Gianni.

3. On 10 May 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.

The role of the National Native Title Tribunal in expedited procedure inquiries

1. The expedited procedure process provides that a native title party can lodge an objection against the application of the expedited procedure statement to the grant of a licence (per s 32(3) of the Act). The Njamal claim group has lodged such an objection in this matter. However, in the context of the s 32 expedited procedure statement, there is no obligation on the State to give the native title party the opportunity to make submissions. There is also no obligation on the parties to negotiate, in contrast to the procedure required by s 31. That is, under s 32 the native title party has no right, and the other parties have no obligation, to negotiate in the course of the expedited procedure process.

2. Parties should be aware that once matters come before the Tribunal in an expedited procedure inquiry, the Tribunal’s only functions are to accept the objection if it complies with s 76 of the Act, and, having done so, determine whether or not the expedited procedure is attracted. If I determine that it is attracted, the State may do the act. If I determine it is not attracted then, and only then, is the native title party’s right to negotiate triggered. Following such a determination, the expedited procedure inquiry process has then been completed. Consideration of a right to negotiate is not relevant to a determination under s 32 of the Act.

3. In practical terms, the Tribunal recognises that a negotiated agreement will usually be preferred by parties over one that is imposed on them through an arbitral inquiry process. The Tribunal also recognises that it takes time to negotiate agreements, taking into account the decision making processes of the parties. However, once an objection is made by a native title party, it must proceed with that objection as quickly and effectively as possible. Where time for negotiation is needed to make an agreement, it will be considered by the Tribunal. However, if a party gives no response or fails to provide information or evidence when directed, it is likely to prejudice the other parties, and may result in the dismissal of the objection.

Should the inquiry proceed or should the matter be dismissed?

1. Following some negotiations between parties, on 14 July 2017, Mr Gianni wrote to the Tribunal advising he had reviewed an agreement proposed by the Njamal claim group’s, and preferred the matter proceed to inquiry.

2. On 21 July 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 1 September 2017. Parties were advised the objection may be dismissed if the objector were to fail, within a reasonable time, to progress the application or comply with a direction of the Tribunal.

3. In August 2017, the Njamal claim group representative and Mr Gianni had an exchange which confirmed that while the claim group would prefer to negotiate an agreement, Mr Gianni was content to proceed with the inquiry process. The Tribunal confirmed with the Njamal claim representative that directions had been set and the Njamal claim group was required to provide their statement of contentions and any documentary evidence on or before 1 September 2017. The Njamal claim group did not provide contentions or evidence, or make any request for further time to provide those documents, on or by 1 September 2017. The State subsequently wrote to the Tribunal and all parties, requesting the matter be dismissed.

4. On 12 October 2017, the Tribunal wrote to all parties to follow up on the status of the objection. Mr Gianni wrote to the Tribunal and all parties and reiterated his preference to proceed with the inquiry. On the same day, the State replied to the Tribunal and all parties reiterating their request 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.

5. On 12 October 2017, the Tribunal wrote to the representatives of the Njamal claim group and Mr Gianni, asking them to respond to the State’s request to dismiss the objection. Parties were given until 17 October 2017 to respond. The Tribunal received no further communication from any party concerning the request for dismissal.

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. 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 E45/4803 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
27 October 2017