Nyamal Aboriginal Corporation RNTBC v Meentheena Gold Pty Ltd

[2021] NNTTA 36

NATIONAL NATIVE TITLE TRIBUNAL

Nyamal Aboriginal Corporation RNTBC v Meentheena Gold Pty Ltd and Another [2021] NNTTA 36 (6 July 2021)

Application No: WO2021/0568

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 RNTBC (WCD2019/010)

(native title party)

- and -

Meentheena Gold Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Nerida Cooley
Place:	Brisbane
Date:	6 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, 32(4), 148(b)

Cases:

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

David Stock v Giralia Resources NL [2000] NNTTA 333

Representatives(s) of the native title party:

Ms Grace Manning-Davis, Arma Legal

Representative(s) of the grantee party: Mr Jacob Loveland, Lawton Macmaster Legal

Representatives(s) of the Government party: Ms Bethany Conway/Mr Matthew Smith, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

BACKGROUND

1. This is a decision to dismiss an expedited procedure objection application made by Nyamal Aboriginal Corporation RNTBC (Nyamal) due to non-compliance with the Tribunal’s directions.  The objection application relates to the proposed grant of exploration licence E45/5281 (licence) to Meentheena Gold Pty Ltd (Meentheena).

Relevant Facts

1. The State of Western Australia, acting through the Department of Mines, Industry Regulation and Safety (State) considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (NTA) and included a statement to that effect in a notice given under s 29 of the NTA.

2. Nyamal, which holds native title in trust for the Nyamal People in relation to the whole of the licence area, objects to the expedited procedure statement.

3. Nyamal’s objection was lodged on 12 March 2021, one day prior to the end of the four month period allowed for objections. Accordingly, the Tribunal (in this case constituted by me) is required to determine whether or not the grant of the licence is an act attracting the expedited procedure (s 32(4) NTA).

4. On 23 March 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  Under those directions Nyamal was required to provide its contentions and evidence on or before 28 April 2021.

5. The Tribunal’s standard practice is for directions to commence following the end of the four month objection period.  A preliminary conference to discuss the matter is usually held shortly after lodgement of an objection.  However, in this case, because Nyamal’s objection was lodged very late in the objection period, the preliminary conference and commencement of the directions both followed in short succession.

6. On 25 March 2021, Nyamal sought a two week extension on the basis that its representative would be unavailable to attend the preliminary conference scheduled for 1 April 2021.  Neither the State nor Meentheena raised any objection so, on 29 March 2021, I amended the directions to require Nyamal to provide its contentions and evidence on or before 12 May 2021.

7. Nyamal did not comply by that date and, on 18 May 2021, the Tribunal informed the parties that the objection was at risk of dismissal under s 148(b) of the NTA. Parties were invited to comment by 25 May 2021. None did, which resulted in the Tribunal advising parties that the matter would be referred to me to consider dismissal.

8. Then, on 26 May 2021, Nyamal sought a further two week extension to 9 June 2021, on the basis that it was likely to reach agreement with Meentheena within that timeframe.  The extension was supported by the State and no comments were received from Meentheena.  On 7 June 2021, after consulting with parties, the Tribunal advised the parties that any material provided by Nyamal on or before 9 June 2021 would be accepted.

9. Ultimately, Nyamal did not provide any contentions or evidence by 9 June 2021 which resulted in the Tribunal again advising the parties, on 28 June 2021, that I would consider dismissal of Nyamal’s application.  No party has commented further.

Consideration of dismissal

1. The Tribunal has a broad discretion, under s 148(b) of the NTA, 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.

2. In considering the dismissal, I have had regard to the principles set out in Teelow v Page (at [13]). I am also mindful that Nyamal, as the applicant, should take steps to progress the objection application within a reasonable timeframe (see s 148(b) of the NTA and David Stock v Giralia Resources NL at page 7).

3. In this case, despite the extensions afforded, Nyamal has failed to comply with the Tribunal’s directions.

4. Having regard to all the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.  Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.

Decision

1. Nyamal’s expedited procedure objection application in relation to E45/5281 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
6 July 2021