Puutu Kunti Kurrama and Pinikura People v Northern Star Resources Limited and Another

[2016] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL

Puutu Kunti Kurrama and Pinikura People v Northern Star Resources Limited and Another [2016] NNTTA 49 (2 November 2016)

Applications No:                WO2015/0897

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Puutu Kunti Kurrama and Pinikura People (WCD2015/003)                    (native title party)

-and-

The State of Western Australia (Government party)

-and-

Northern Star Resources Limited    (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              28 October 2016

Date of reasons:                2 November 2016

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 Act1993 (Cth), ss 29, 148(b)

Cases:Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)

Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People; Gordon Lansen on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People; Les Hogan on behalf of the Garawa and Gurdanji People/Northern Territory/Ashton Mining Ltd; North Mining Ltd [2002] NNTTA 48 (‘Dixon v Northern Territory’)

Puutu Kunti Kurrama and Pinikura People v Brockman Exploration Pty Ltd and Another [2016] NNTTA 46 (‘PKKP v Brockman Exploration Pty Ltd’)

Western Australia v Ben Ward & Ors on behalf of the Miriuwung Gajerrong peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd [1996] FCA 993; 70 FCR 265 (‘WA v Ward’)

Representative of the        

native title party:               Ms Sabina Schlink, Thomas Legal

Representative of the        

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

Representative of the

Grantee party:                   Ms Alex Mukherji, Northern Star Resources Limited

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 26 August 2015, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E47/3305 to Northern Star Resources Limited (Northern Star). The area of the proposed licence wholly overlaps the Puutu Kunti Kurrama and Pinikura People’s (PKKP) native title determination (Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2, WCD2015/003).

2. The State included an expedited procedure statement in the public advertisement of the licence, which asserts the grant of each licence can be made without negotiation between the PKKP, the State, and Northern Star.

3. On 6 November 2015, the PKKP lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the proposed licence. They did this through the Yamatji Marlpa Aboriginal Corporation, their representative at that time. To answer the question of whether the licences can be granted in an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry.

Requests to dismiss the objection applications

1. On 6 May 2016, the Yamatji Marlpa Aboriginal Corporation contacted the Tribunal advising they no longer represented the PKKP, and that any native title related matters should be referred to the new PKKP legal representative, Ms Sabina Schlink of Thomas Legal. The Tribunal made numerous attempts to contact Ms Schlink by telephone and email to confirm that Thomas Legal would be representing the PKKP. The Tribunal received no response from Ms Schlink. Ms Schlink was advised by email that if there continued to be no response, directions would be issued in this inquiry.

2. A status conference was held on 1 June 2016, at which no representative of PKKP attended. Northern Star advised it had sent a Deed of Variation to the PKKP in April 2016, but had not received any response.

3. On 23 June 2016, I 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 PKKP were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 3 August 2016.  On 4 July 2016, the Tribunal contacted Ms Schlink with a list of matters, including this inquiry, asking about progress. Ms Schlink indicated she would get back to the Tribunal that same week, however, the Tribunal heard nothing further in relation to this inquiry.

4. Neither contentions nor evidence were received from the PKKP by 3 August 2016. On 4 August 2016, the State wrote to all party representatives and the Tribunal, requesting the objection be dismissed because the PKKP had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.   Rather than dismiss the application, I further sought to clarify the PKKP’s representation, to ensure all parties had fully appreciated their opportunity to present their case. No response was received from communications to Ms Schlink.

5. On 13 October 2016, parties were notified that a listing hearing would be held on 19 October 2016, to hear from parties. Northern Star and the State’s representative attended.  The PKKP’s representative did not attend. The State requested the application be dismissed.  Rather than dismiss the application, I amended directions the same day, attaching a springing order, so the objection application would be automatically dismissed for non compliance should Ms Schlink fail to make contact or respond to Tribunal directions. The amended directions required PKKP to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 28 October 2016. Ms Schlink and all parties were advised of the consequences of non compliance.  Parties were at liberty to request a variation in compliance directions.  No party made such request.

6. At the time of its various attempts to contact the new PKKP representative between April and October 2016, the Tribunal also sent copies of substantive email communications to the PKKP Aboriginal Corporation RNTBC Company Secretary. The Tribunal also sent a detailed letter outlining matters which required urgent attention to the RNTBC Trustee Body Corporate address. That letter included this inquiry.p The Tribunal did not receive any response from these communications.

7. Neither contentions nor evidence were received from the PKKP by 28 October 2016.

Application of Springing Order to directions

1. I applied a similar approach and reasoning in this inquiry as I did in PKKP v Brockman Exploration Pty Ltd (at [16]–[17])

Should the objection applications be dismissed?

1. As noted in the various emails from the Tribunal to parties in this matter, the PKKP were given every opportunity to respond or present their case. Due to the PKKP’s failure to comply with amended directions, the self-executing springing order came into effect as of close of business on 28 October 2016, and this expedited procedure objection application is now dismissed. It may be that the PKKP no longer wish to prosecute the objection, however, this has not been communicated to the Tribunal.

2. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. I also note the Federal Court decision in WA v Ward, which established that a determination whether the expedited procedure is attracted is to be made as speedily as possible.

3. The expedited procedure process provides that a native title party can lodge an objection (s 32(3)), as the PKKP has done in these matters. In the context of the s 32 expedited procedure, there is no obligation on the State to give the native title party the opportunity to make submissions regarding the act. There is also no obligation on parties to negotiate, in contrast to the procedure required by s 31. That is, under s 32, the native title party has no right, and the other parties have no obligation, to negotiate in the course of the expedited procedure process. In the course of these inquiries, the State twice requested the objections be dismissed.

4. Parties need to be aware that once expedited procedure objection application inquiries come before the Tribunal, the Member’s only functions under the Native Title Act 1993 (Cth) are to accept an objection application if it complies with s 76 and, having done so, determine whether or not the expedited procedure is attracted. If I determine the expedited procedure is attracted, the State may do the act. If I determine it is not attracted then, and only then, does the right to negotiate arise. Following a determination, the expedited procedure inquiry process has then been completed.

5. In practical terms, the Tribunal recognises that an agreement which can be negotiated between parties will usually be preferred by parties, over one that is imposed on them through an arbitral process. The Tribunal also recognises that it takes time to negotiate agreements, taking into account the decision making processes of the parties. However, once an objection application is made by a native title party, it must proceed with that objection as quickly and effectively as possible. Where time for negotiation is needed to make an agreement, or to take instructions, it will be considered by the Tribunal. However, if a party gives no response or fails to provide information or evidence when directed, it is likely to prejudice the other parties, and may result in the dismissal of the objection. Dismissing this application is not something I have done lightly.

Decision

1. The objection applications against exploration licence E47/3305 is dismissed by operation of a springing order on 28 October 2016, as per s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
2 November 2016