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

[2017] NNTTA 29

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Njamal v Volt Lithium Pty Ltd and Another [2017] NNTTA 29 (1 June 2017)

Application No: WO2016/0936

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 -

Volt Lithium Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date of dismissal:	1 June 2017
Date of reasons:	1 June 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: Ms Kathleen Mulroney, Mining Access Legal

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

REASONS FOR DETERMINATION

Background

1. On 7 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 E45/4790 to Volt Lithium Pty Ltd (Volt Lithium) without requiring Volt Lithium or the State to negotiate with the Njamal native title claim group (the 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 of this licence can be made expeditiously, without negotiation between the Njamal claim group, the State, and Volt Lithium.

3. On 21 December 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 28 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 9 May 2017.

2. On 9 May 2017 the Njamal claim group requested an extension of one week to the directions due to the change in their representation. No party objected to the request being granted. On 16 May 2017, I amended directions to accommodate the one-week extension. The Njamal claim group was then directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 16 May 2017.

3. Neither contentions nor evidence were received from the Njamal claim group by 16 May 2017. On 17 May 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.

4. On 18 May 2017, the Tribunal wrote to the representatives of the Njamal claim group and Volt Lithium, asking them to respond to the State’s request to dismiss the objection. Parties were given until 25 May 2017 to respond. Having received no response from parties, the Tribunal again wrote to the Njamal claim group on 25 May 2017 and to Volt Lithium on 26 May 2017, asking for a response to the dismissal request. On 26 May 2017, Volt Lithium’s representative indicated that her client supported the dismissal request. No response or further communication has been received from the Njamal claim group or their representative.

5. 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.

6. 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 E45/4790 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
1 June 2017