Kevin Allen & Others on behalf of Nyamal & FMG Pilbara Pty Ltd and Another

[2018] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Nyamal & FMG Pilbara Pty Ltd and Another [2018] NNTTA 59 (8 October 2018)

Application No: WO2018/0007 & WO2018/0008

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 -

FMG Pilbara Pty Ltd
(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	8 October 2018

Catchwords:

Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed

Legislation:

Native Title Act1993 (Cth) ss 29, 148(b)

Cases:

Teelow v Page [2001] NNTTA 107; 166 FLR 266

David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Mr Jamie Haynes, Nyamal Heritage Pty Ltd

Representative of the grantee party: Ms Nerolie Nikolic, FMG Pilbara Pty Ltd

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 6 September 2017, the State Government of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E46/1072 and E46/1081 to FMG Pilbara Pty Ltd (FMG). The area of E46/1072 overlaps the Nyamal claim group’s native title claim (WC1999/008) by 35.64 per cent and the area of E46/1081 overlaps the Nyamal claim group’s native title claim by 99.1 per cent.

2. On 4 January 2018, the Nyamal claim group lodged an objection with the National Native Title Tribunal (the Tribunal) against the State’s application of the expedited procedure to the grant of both licences. To answer the question of whether the licences can be granted in such an expedited way, I was appointed by the then President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiries.

Should the inquiry proceed or should the matters be dismissed?

1. On 1 August 2018, 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 Nyamal claim group were directed to provide a statement of contentions, documentary evidence relevant to the inquiry, and a statement of the evidence to be given by any witness for the Nyamal claim group, verified where possible by affidavit, on or before 12 September 2018.

2. The State complied with directions on 15 August 2018, and sent their information to all parties. The Nyamal claim group did not provide contentions or evidence by 12 September 2018, or request further time to provide any documents. 

3. On 26 September 2018, the Tribunal wrote to the parties notifying that the matters were now at grave risk of dismissal due to the non-compliance of the Nyamal claim group. The Tribunal provided an opportunity for the Nyamal claim group to provide any response or information in relation to the apparent lack of compliance, further advising that this matter would be directed to myself for dismissal if there was no further information or response provided. To date there has been no response.     

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.  This principle has been reiterated many times in Tribunal decisions.  For example, in David Stock v Giralia Resources NL, Deputy President Franklyn QC stated (at page 6):

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection

5. Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):

   27.10b    Replacement item 40 inserts new section 148 which states that the NNTT has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with NNTT directions. 
   27.10c    …These limited provisions will assist the NNTT to more efficiently and appropriately manage its processes…

6. As at the date of this determination, no response has been received from the Nyamal claim group as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance. In the circumstances, the Nyamal 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 licences can be granted in an expedited way because I have concluded the objections should be dismissed.

Determination

1. The objection application against exploration licence E46/1072 and E46/1081 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member
8^th October 2018