Patricia Lewis & Ors on behalf of Nyalpa Pirniku Claim Group v Anglogold Ashanti Australia Limited and Anor

[2020] NNTTA 71

NATIONAL NATIVE TITLE TRIBUNAL

Patricia Lewis & Ors on behalf of Nyalpa Pirniku Claim Group v Anglogold Ashanti Australia Limited and Anor [2020] NNTTA 71 (19 November 2020)

Application No: WO2020/0589

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

- and -

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

Patricia Lewis & Ors on behalf of Nyalpa Pirniku Claim Group (WC2019/002)

(native title party)

- and -

Anglogold Ashanti Australia Limited

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	19 November 2020

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

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:

Mr Andrew Burke, Native Title Services Goldfields

Representative(s) of the grantee party: Mr Tim Prentice, Anglogold Ashanti Australia Limited

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

REASONS FOR DECISION

Background

1. On 11 March 2020, 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 E39/2147 (application) to Anglogold Ashanti Australia Limited (grantee party). The s 29 notice included a statement that the State considers the grant of the application 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 application without compliance of the negotiation procedure under s 31 of the NTA.

3. The area of the application is located wholly within the area of the native title determination application made by the Nyalpa Pirniku claim group (WC2019/002). On 10 July 2020, the registered native title claimant for the Nyalpa Pirniku claim group (native title party) lodged an objection with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement in relation to the application.

4. The native title party’s objection application was lodged within the timeframe required under 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 application is an act attracting the expedited procedure.

Relevant Facts

1. The President of the Tribunal had appointed Member Nerida Cooley to constitute the Tribunal for the purposes of the inquiry who made directions on 23 July 2020 requiring all parties to provide contentions and evidence. The native title party were directed to provide the Tribunal its contentions and evidence by 31 August 2020.

2. On 21 August 2020, the native title party applied for an extension of time requesting the directions be varied by four weeks to provide their contentions and evidence. The State and the grantee party supported the request made by the native title party and on 25 August 2020 the amended directions were issued and provided to all parties. The native title party were now directed to provide their contentions and evidence by 29 September 2020.

3. On 22 September 2020, the native title party applied for a second extension of time requesting an additional four weeks to provide their contentions and evidence. The State and the grantee party supported this request and on 23 September 2020 amended directions were issued to all parties. The native title party were now directed to provide their contentions and evidence by 27 October 2020. The native title party did not provide any contentions or evidence by the due date and did not make a request for an extension of time to do so.

4. On 22 October 2020, the President reallocated this matter and appointed me to constitute the Tribunal for the purposes of the inquiry.

5. On 4 November 2020, the Tribunal wrote to all parties advising that the native party had failed to comply with directions made and the objection was now at risk if dismissal under s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business on 11 November 2020. That same day the State wrote to the Tribunal formally requesting that the objection be dismissed pursuant to s 148(b) as the applicant had fail to comply with direction 2. No response was received from the native title party or grantee 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 application or to comply with a direction by the Tribunal.

2. While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious 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 the native title party, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).

5. In this case the native title party has not given any reason for its non-compliance with the directions of the Tribunal nor sought any additional extension of time.

6. In the circumstances, the native title party has had sufficient opportunities to comply with directions set by the Tribunal or make another request for an extension of time. Having regard to all of 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.

Determination

1. The expedited procedure objection application in relation to the exploration licence E39/2147 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
19 November 2020