Ngadju Native Title Aboriginal Corporation v Neville Leon King

[2023] NNTTA 9

NATIONAL NATIVE TITLE TRIBUNAL

Ngadju Native Title Aboriginal Corporation v Neville Leon King [2023] NNTTA 9 (28 March 2023)

Application No: WO2022/1217

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 (WCD2014/004)

(native title party)

- and -

Neville Leon King

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	28 March 2023

Catchwords:

Native title – future acts – 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, 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 (Graham v Western Australia)

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

Representatives(s) of the native title party:

Grant Bussell, Ngadju Native Title Aboriginal Corporation

Representative(s) of the grantee party: Neville Leon King

Representatives(s) of the Government party: Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 30 September 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 exploration licence P15/6746 (proposed licence) to Neville Leon King (grantee). 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).

2. 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.

3. The proposed licence is entirely situated on native title lands held on trust by the Ngadju Native Title Aboriginal Corporation (NTAC) (see Graham v Western Australia). As such, NTAC is 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).

4. On 5 October 2022, NTAC exercised their right to lodge an objection to the expedited procedure application with the National Native Title Tribunal (Tribunal).  

5. NTAC lodged the objection application 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

1. 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.

2. On 13 October 2022, I made directions requiring all parties to provide contentions and evidence for the conduct of the enquiry. Under those directions, NTAC was directed to provide the Tribunal its contentions and evidence by 7 March 2023.

3. On 9 November 2022, I convened a preliminary conference which representatives for all parties attended. The grantee party representative advised they had received NTAC’s preferred agreement, and had a number of concerns.

4. On 10 November 2022, the grantee party contacted the Tribunal to advise that, after further review of NTAC’s preferred heritage agreement, he had resolved to go to the inquiry process. The grantee party provided reasons for this decision and representatives for all parties were copied into the correspondence.

5. On 18 January 2023, I convened a directions hearing which representatives for all parties attended. The grantee party confirmed he wished to proceed to inquiry and a representative for NTAC advised they would proceed towards gathering evidence and seek an extension if required.

6. On 9 March 2023, the Tribunal wrote to all parties noting that NTAC 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 16 March 2023. No formal response was received from any party.

Consideration of dismissal

1. 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.

2. 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.

3. 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.

4. I am also mindful that NTAC, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).

5. In this case, NTAC has not provided any reason for non-compliance with the directions of the Tribunal nor sought any additional extension of time.

6. Having regard to all of the facts and circumstances of this matter, NTAC have been provided had sufficient opportunity to either comply with directions set by the Tribunal. I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to the grant of exploration licence P15/6746 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
28 March 2023