Nyamal Aboriginal Corporation RNTBC v Future Metals Group Pty Ltd GTTS Generations Pty Ltd

[2021] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation RNTBC v Future Metals Group Pty Ltd GTTS Generations Pty Ltd and Another [2021] NNTTA 35 (2 July 2021)

Application No: WO2021/0646

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Nyamal Aboriginal Corporation (WCD2019/010)

(native title party)

- and -

Future Metals Group Pty Ltd GTTS Generations Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Helen Shurven
Place:	Perth
Date:	2 July 2021
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 Act 1993 (Cth) ss 29, 31, 32, 148(b), 237
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266
Representatives of the native title party:	Grace Manning-Davis and Tara Babu, Arma Legal

Representative of the grantee party: Stephen Pearson, Geko-Co Pty Ltd

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

REASONS FOR DECISION

Background

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia (the State) gave notice of its intention to grant exploration licence E45/5585 to Future Metals Group GTTS Generations Pty Ltd (the grantee party), with a notification day of 18 November 2020. The s 29 notice for the licence included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of an exploration licence, will be an ‘act attracting the expedited procedure’, thereby excluding it from the ‘right to negotiate’ provisions of the Act (see also s 31 and s 32 of the Act). A native title party may object to the application of the expedited procedure statement. In this inquiry, it was not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure, as I have concluded the objection must be dismissed, for the reasons outlined below.

2. The proposed licence overlaps the Nyamal Aboriginal Corporation native title determination (WCD2019/010).  On 18 March 2021, the Nyamal Aboriginal Corporation lodged an objection with the National Native Title Tribunal against the inclusion of the expedited procedure statement.

3. The President of the Tribunal directed me to constitute the Tribunal for the purposes of this inquiry.

Relevant Facts

1. Following lodgement and acceptance of the objection by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  These directions were sent by the Tribunal to all parties on 1 April 2021 in the notification email. A preliminary conference was held on 9 April 2021, where the grantee party indicated the draft agreement provided by Nyamal was being reviewed. Directions were amended at the preliminary conference to allow some time for the grantee to confirm their instructions.

1. Under the directions issued, the State complied on 20 May 2021, copying in all parties. The native title party was due to provide their contentions and evidence on or before 10 June 2021.  No material was provided and the native title party did not request further time to comply.

2. An email sent by the Tribunal on 18 June 2021 to all parties noted that (emphasis in original):

   The native title party has failed to comply with directions on or by 10 June 2021 - no request for extension or reasons for compliance being missed have been provided.

   If parties are intending to reach agreement, or need further time to execute an agreement, they should advise the Tribunal of such on or by Wednesday 23 June 2021 and the Member will consider all parties views.

   If no further information is provided by that date, this matter will be referred to Member Shurven for dismissal shortly thereafter.

3. There was subsequently no response from the native title party requesting an extension to the direction dates nor outlining any reasons for the failure to submit any contentions, or any information about progress of the matter toward agreement. 

Consideration of dismissal

1. The Tribunal has a broad discretion, under s 148(b) of the Act, to 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 application or to comply with a direction by the Tribunal. Parties are advised at the outset of an inquiry, in the notification email, that ‘if the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application’.

2. In considering the dismissal, I note the comments in Teelow v Page (at [9]):

   The very term "expedited procedure" highlights the nature of the inquiry reposed with the Tribunal. It is an inquiry to achieve an outcome in an informal and speedy manner. The Tribunal should use every endeavour to ensure that expedited procedure inquiries are conducted so that a speedy outcome is achieved. Delays by parties in this context are not just an inconvenience to the Tribunal and to the other parties, but strike at the very core of the nature of these proceedings.

   I also have regard to the principles outlined in Teelow v Page (at [13]).

3. Having regard to all the facts and circumstances, I am satisfied this objection application should be dismissed. 

Decision

1. The expedited procedure objection application in relation to exploration licence E45/5585 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
2 July 2021