Kevin Allen & Others on behalf of Nyamal and De Grey Mining and Another

[2018] NNTTA 62

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Nyamal and De Grey Mining and Another [2018] NNTTA 62 (16 October 2018)

Application No: WO2017/0161

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 Nyamal  (WC1999/008)

(native title party)

- and –

De Grey Mining Ltd
(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	16 October 2018

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 (‘Teelow v Page’)
Representative of the native title party:	Mr Jamie Haynes, Nyamal Heritage

Representative of the grantee party: Ms Yvette Collins, Hetherington Exploration and Mining Title Services (WA) Pty Ltd

Representatives of the Government party: Ms Bethany Conway and Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 2 November 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 E45/4751-I to De Grey Mining Ltd, without requiring De Grey Mining or the State to negotiate with the Nyamal native title claim group (the Nyamal claim group). The area of the proposed licence is partially overlapped by the Nyamal claim group’s native title claim (WC1999/008). 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 Nyamal claim group, the State, and De Grey Mining.

2. On 2 March 2017, the Nyamal 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 former 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. Directions were originally set in December 2017. Since then this matter has had a long course, including changes in representation for Nyamal. Both Nyamal and De Grey Mining indicated they were attempting to reach agreement on this and other tenure in the area.

2. Parties have been reminded a number of times that the focus of an expedited procedure inquiry is not negotiation, but rather whether or not the expedited procedure applies. As such, a native title party must endeavour to progress their objection once it is lodged, which includes by lodging contentions and evidence in compliance with directions. Nyamal have specifically been warned in relation to this matter that failure to do so will lead to dismissal.

3. On 2 October 2018 the Nyamal claim group wrote to the Tribunal and all parties advising that a Heritage Protection Agreement was at its final stages and requested the Tribunal allow time for parties to reach agreement with a further 10 day extension to file evidence and contentions, should the agreement not be concluded.

4. The Tribunal wrote to parties on 4 October 2018, and indicated that based on the stated progress towards reaching agreement, I granted the 10 day extension request, with the new compliance date being 11 October 2018. In that same communication on 4 October 2018, the Tribunal informed the Nyamal claim group they were on notice that that unless the contentions were provided on or by that due date, or the objection was resolved in some other way, I would consider the matter for dismissal on Monday 15 October 2018.

5. On 7 October 2018 De Grey Mining wrote to the Tribunal and all parties advising that De Grey Mining’s intention is to continue negotiating the agreement, irrespective of whether the objection stays in place.

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 Nyamal claim group has been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the State 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 E45/4751-I is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
16 October 2018