Ngadju Native Title Aboriginal Corporation RNTBC v Innovation Mining Pty Ltd
[2023] NNTTA 4
•27 February 2023
NATIONAL NATIVE TITLE TRIBUNAL
Ngadju Native Title Aboriginal Corporation RNTBC v Innovation Mining Pty Ltd & Anor [2023] NNTTA 4 (27 February 2023)
Application No: | WO2022/1076 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Ngadju Native Title Aboriginal Corporation RNTBC (WCD2014/004)
(native title party)
- and -
Innovation Mining Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 27 February 2023 |
Catchwords: | Native title – future acts – proposed grant of a prospecting licence – expedited procedure objection application – failure to comply with directions – objection application dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b) |
Cases: | David Stock v Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia) Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 Teelow v Page [2001] NNTTA 107; 166 FLR 266 |
| Representatives(s) of the native title party: | Daniel Jacobs, Native Title Services Goldfields |
| Representative(s) of the grantee party: | Dennis Fry, Innovation Mining Pty Ltd |
| Representatives(s) of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR dismissal
On 10 August 2022, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence E26/238 (proposed licence) to Innovation Mining Pty Ltd. The s 29 notice included a statement that the State considers the grant of the proposed licence is an act attracting the expedited procedure under the NTA (expedited procedure statement).
If the expedited procedure applies, then the State may grant the proposed licence without entering into the right to negotiate procedure under s 31 of the NTA.
The area of the proposed licence is located 94.54% within the area of the Dennis Forrest & Ors on behalf of Kakarra Part A determination (Kakarra A) (WC2020/005; WAD297/2020) and 5.46% within the area of the Ngadju determination, held in trust by the Ngadju Native Title Aboriginal Corporation RNTBC (WCD2014/004; WAD6020/1998) (Ngadju). As such, each are a native title party with the right to object to the expedited procedure statement (see ss 29(2)(a) and 32(3) of the NTA).
On 25 August 2022, Ngadju exercised their right and made an expedited procedure objection application to the National Native Title Tribunal (Tribunal). Ngadju has status to make the objection application as it holds the determined native title in trust for the Ngadju common law holders (see Graham on behalf of the Ngadju People v State of Western Australia).
Kakarra A also exercised their right and objected to the proposed licence on 24 August 2022 (WO2022/1065). However, the objection was withdrawn by the native title party on 22 February 2023 due to lack of agreement with the grantee party.
The objection application was lodged within the timeframe outlined in s 32(3) of the NTA and therefore under s 32(4) of the NTA the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.
Relevant Facts
Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.
On 1 September 2022, I made directions requiring all parties to provide contentions and evidence for the conduct of the enquiry. Under those directions, Ngadju was directed to provide the Tribunal its contentions and evidence by 6 February 2023.
Parties attended a preliminary conference on 21 September 2022. Ngadju had provided a draft agreement to the grantee party on 14 September 2022. The grantee party indicated it would take three weeks to review and return comments.
A first status conference was held on 26 October 2022. The grantee party confirmed they were still reviewing the agreement and had been comparing it to a previous form of agreement. Ngadju was still waiting on a response and the grantee party hoped they could return comments as soon as possible.
I convened a directions hearing on 23 November 2022. The grantee party indicated they had returned comments on the agreement on 22 November 2022 but were having technical difficulties. The grantee party believed they were narrowing issues and negotiations would continue. No further listings were held.
On 7 February 2023, the Tribunal wrote to all parties noting that Ngadju had failed to comply with the directions made and the objection was now at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business on 10 February 2023. No response was received from the State or grantee party.
The Ngadju representative responded on 15 February 2023. The representative advised that due to lack of willingness on the part of the grantee party to negotiate, they would be seeking instructions to withdraw the objection the following day. The representative noted their delay in reply was due to an on country field trip. The Tribunal responded on the 20 February 2023, asking whether the representative had gained instructions to withdraw the objection and were given until close of business 21 February 2023 to respond, otherwise the matter would be put forward for dismissal. No reply was received. Throughout correspondence after the compliance date, Ngadju did not undertake any form of compliance with the directions.
Consideration of Dismissal
Under s 148(b) of the NTA the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the native title party fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal.
While the Tribunal has broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.
The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.
I am also mindful that Ngadju, as the applicant, should be taking steps to progress the objection applications within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).
In this case, Ngadju has not provided a valid reason for non-compliance with the directions of the Tribunal nor sought any additional extension of time.
In the circumstances, Ngadju has had sufficient opportunity to comply with directions set by the Tribunal or to request an extension of time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed.
Determination
The expedited procedure objection applications in relation to exploration licence E26/238 is dismissed pursuant to s 148(b) of the NTA.
Mr Glen Kelly
Member
27 February 2023
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