Kevin Allen & Others on behalf of Njamal v Sheffield Resources Limited and Another

[2017] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal v Sheffield Resources Limited and Another [2017] NNTTA 20 (12 May 2017)

Application No: WO2016/0511

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 -

Sheffield Resources Limited

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date of dismissal:	12 May 2017
Date of reasons:	12 May 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 Act 1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Representatives of the native title party:	Ms Karen Hearn, Indigenous Services Pty Ltd

Representative of the grantee party: Mr Eamon Cornelius, Western Tenement Services

Representatives of the Government party: Ms Bethany Conway, Department of Mines and Petroleum

REASONS FOR DETERMINATION

Background

1. On 6 April 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 E46/1099 to Sheffield Resources Limited (Sheffield Resources) without requiring Sheffield Resources or the State to negotiate with the Njamal native title claim group (the Njamal claim group). 4.22 per cent of the area of the proposed licence is 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 that 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 Sheffield Resources.

3. On 5 August 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 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 15 March 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 26 April 2017.

2. Neither contentions nor evidence were received from the Njamal claim group by 26 April 2017. On 27 April 2017, the State wrote to the Tribunal and all parties requesting the objection be dismissed because the Njamal claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 27 April 2017, the Tribunal wrote to the representative of the Njamal claim group and Sheffield Resources, asking them to respond to the State's request to dismiss the objection. Parties were given until 4 May 2017 to respond. On 28 April 2017, the Njamal claim group representative indicated they were in negotiations with Sheffield Resources and remained confident agreement could be reached which would incorporate this licence. The Sheffield Resources representative indicated on 4 May 2017 that his client had no comment in relation to the dismissal request.

4. On 10 May 2017, Sheffield Resources’ representative lodged submissions, in accordance with their compliance directions. The matter was before me that day for consideration of the dismissal request. To avoid any confusion arising from Sheffield Resources’ compliance, the Tribunal sent all parties an email that same day stating the following:

   This matter has now gone to Member Shurven for consideration of dismissal of the objection application. The Member notes the native title party representative response that they are currently in negotiations with the grantee and they are confident agreement can be reached. As no request for a change to compliance dates was made, this matter is at grave risk of dismissal.

   The grantee has now put in submissions for this matter, according to the directions. Member Shurven was concerned that may cause confusion for other parties. To ensure there is no confusion, this matter is currently with Member Shurven for the objection application to be dismissed. If there is no further communication from the native title party representative by noon Friday 12 May, the objection application will be dismissed.

5. There was no further communication from any party.

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 E46/1099 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
12 May 2017