Ngarluma Aboriginal Corporation v Johanna Pullman, Steven Taiamoni

[2015] NNTTA 55

NATIONAL NATIVE TITLE TRIBUNAL

Ngarluma Aboriginal Corporation v Johanna Pullman, Steven Taiamoni [2015] NNTTA 55 (20 November 2015)

Application No:                  WO2015/0629

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Ngarluma Aboriginal Corporation  (native title party)

-and-

The State of Western Australia  (Government party)

-and-

Johanna Pullman, Steven Taiamoni   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Mr J McNamara, Member

Place:Brisbane

Date of dismissal:              20 November 2015

Date of reasons:                20 November 2015

Catchwords:  Native title – future act – proposed grant of prospecting 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) 166 FLR 266 ('Teelow v Page')

Representative of the        

native title party:              Mr Chris Terren, Roe Legal Services

Representative of the        

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

Representative of the

grantee party:  Ms Johanna Pullman

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 2 April 2015, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P47/1737 to Ms Johanna Pullman and Mr Steven Taiamoni without requiring them, or the State, to negotiate with the Ngarluma Aboriginal Corporation. The area of the proposed licence is covered by the native title party determination WCD2005/001. The determined area overlaps the licence by 100 per cent.

2. The State has asserted the grant can be made without such negotiations, as they have included an expedited procedure clause in the public advertisement of the licence.  That is, they say the grant of this licence can be made expeditiously, without negotiation between the Ngarluma Aboriginal Corporation, the State, Ms Pullman and Mr Taiamoni.

3. The Ngarluma Aboriginal Corporation lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence on 30 July 2015.  To answer the question of whether the licence can be granted in such an expedited way, Member Helen Shurven 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 August 2015, Ms Pullman and Mr Taiamoni advised the Tribunal they wanted this matter to proceed to an inquiry.  Member Shurven 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 Ngarluma Aboriginal Corporation was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 9 October 2015. 

2. On 6 October 2015, Mr Chris Terren wrote to the Tribunal to advise that Roe Legal Services now had carriage of this matter on behalf of Ngarluma Aboriginal Corporation. Mr Terren also requested a four week extension to the Directions set by Member Shurven on 28 August 2015.

3. On 6 October the Tribunal wrote to parties seeking a response to this request. The State did not oppose the extension. No response was received from Ms Pullman or Mr Taiamoni.  Directions were amended by Member Shurven on 12 October 2015, with the Ngarluma Aboriginal Corporation required to provide parties with all relevant submissions on or before 6 November 2015.

4. No contentions or evidence was received from the Ngarluma Aboriginal Corporation by 6 November 2015.  On 10 November 2015, the State wrote to the Tribunal, the Ngarluma Aboriginal Corporation representative, Ms Pullman and Mr Taiamoni requesting the objection be dismissed because the Ngarluma Aboriginal Corporation had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

5. On 10 November 2015, the Tribunal wrote to the Ngarluma Aboriginal Corporation representative, Ms Pullman and Mr Taiamoni, asking them to respond to the State's request to dismiss.  Parties were given until 16 November 2015 to respond.  Ms Pullman and Mr Taiamoni wrote on 15 November 2015 in support of the request to dismiss the objection. No response was received from the Ngarluma Aboriginal Corporation representative. 

6. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

7. As at the date of this determination, no response has been received from the Ngarluma Aboriginal Corporation as to why the objection should not be dismissed, nor has any further request for extension of directions been received, nor any reason for non compliance.

8. In the circumstances, the Ngarluma Aboriginal Corporation have been given sufficient opportunity to comply with directions set by Member Shurven, 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 prospecting licence P47/1737 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Mr J McNamara
Member
20 November 2015