Roy Tommy & Others on behalf of Yinhawangka Gobawarrah v Kean & Another

[2019] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Roy Tommy & Others on behalf of Yinhawangka Gobawarrah v Kean & Another [2019] NNTTA 59 (9 August 2019)

Application No:

WO2018/0586

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

- and -

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

Roy Tommy & Others on behalf of Yinhawangka Gobawarrah (WC2016/004)

(native title party)

- and -

Steven Lionel Kean

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms Helen Shurven

Place:

Perth

Date:

9 August 2019

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, 237, 148

Native Title Amendment Bill 1997 [No. 2]

Cases:

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

David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia)

Representatives(s) of the native title party:

Mr R Tommy and Ms J Walker

Representative(s) of the grantee party:

Mr S Kean

Representatives(s) of the Government party:

Mr M Smith and Ms B Conway of Department of Mines, Industry Regulation and Safety

REASONS for decision to dismiss objection application

Background

[1] On 25 July 2018, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) that it intended to grant exploration licence E08/2992 (the proposed grant) to Steven Lionel Kean. In the notice, the State asserted the proposed grant attracted the expedited procedure. As outlined in s 237 of the Act, the expedited procedure applies where the grant of the licence is not likely to, in summary:

• interfere directly with the native title holders’ community or social activities;

• interfere with areas or sites of particular significance, in accordance with their traditions;

• involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

[2]       The registered Yinhawangka Gobawarrah native title claim (WC2016/004) overlaps 100 per cent of the licence E08/2992. On 8 August 2018, Yinhawangka Gobawarrah lodged an objection with the National Native Title Tribunal (the Tribunal) against the application of the expedited procedure to the proposed grant. I have been appointed to decide whether the expedited procedure applies to the proposed grant of E08/2992.

The proceedings to date

[3]       On 3 May 2019, 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 proposed grant. Included in those directions was that Yinhawangka Gobawarrah provide a statement of contentions and supporting documents on or before 28 June 2019. The directions were communicated to all parties, including the Yinhawangka Gobawarrah representative. In that communication, parties were asked to note that:

…if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application…

[4] Yinhawangka Gobawarrah did not comply with their direction. On 9 July 2019, the State wrote to the Yinhawangka Gobawarrah representative, copying in the Tribunal and Mr Kean, seeking dismissal of the objection application pursuant to s 148(b) of the Act. Section 148 provides:

The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

(a)  the Tribunal is satisfied that it is entitled to deal with the application; or

(b)  the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

[5]       On 10 July 2019, the Tribunal notified all parties as follows:

The Tribunal has received a request from the government party to dismiss the abovementioned objection under s 148(b) of the Native Title Act 1993 (Cth) on the basis that the native title party has failed to provide contentions and evidence by their due date of 28 June 2019, and no request to extend this date has been received.

If parties wish to make comment on this request, please do so by no later than COB Tuesday, 16 July 2019. This request and any responses will then be put to Member Shurven for her consideration and parties will be advised of the outcome in due course.

[6]       On 16 July 2019, Mr Kean wrote to the Tribunal and all parties, supporting the State’s request for dismissal. There was no specific response from Yinhawangka Gobawarrah in relation to the dismissal request.

[7]       The Yinhawangka Gobawarrah representative had written to the Tribunal on 13 July 2019, in response to a previous email from the Tribunal about an expedited procedure objection they had made in another matter.   The Yinhawangka Gobawarrah representative noted that preparation for a contested native title trial had been consuming, and ‘…we won't be able to participate in any NNTT future acts process…therefore I respectfully request matters are postponed till after the 19th July’.  On 18 July 2019, the Tribunal wrote to the representative, again drawing to their attention the failure to comply in this matter, that this matter was under consideration for dismissal, and that the State and Mr Kean both supported dismissal.

[8]       Given that Yinhawangka Gobawarrah are effectively self-represented in regard to future act matters, and on the understanding the contested native title claim action had diverted attention from future act matters, I requested parties attend a case management conference on 26 July 2019.  I intended to hear directly from the Yinhawangka Gobawarrah representative about the delay, any prejudice caused by the delay to the other parties, and whether there was any possibility of agreement being reached to dispense with the objection. 

[9]       At the case management conference, Mr Kean outlined the effects of delay in the grant of the licence to the exploration program, and the State pressed for the matter to be dismissed.  The Yinhawangka Gobawarrah representative did not attend, nor was any communication directly on this matter received.  The Tribunal and other parties had been communicating with Yinhawangka Gobawarrah using the email which had been provided by them at the time of notification.  However, it became apparent that Yinhawangka Gobawarrah was working from three different emails, and as such, the Tribunal sent a further communication, using all of the three Yinhawangka Gobawarrah email addresses, giving a brief period of time for Yinhawangka Gobawarrah to provide compliance – the representative was again put on notice that failure to comply would lead to dismissal shortly thereafter.  Yinhawangka Gobawarrah were also reminded that it is a party’s responsibility to ensure the correct email address for contact is kept updated at all times.

[10]     After brief communication from Yinhawangka Gobawarrah, a new compliance date of 7 August 2019 was set. Yinhawangka Gobawarrah did not provide its statement of contentions or supporting documents for the purposes of this inquiry by this date, and no further communications were received from them.

Consideration

[11]     I am satisfied Yinhawangka Gobawarrah has been provided reasonable opportunity and time in which to comply with Tribunal directions. 

[12]     In considering this dismissal, I have had regard to the applicable principles set out by the Tribunal in Teelow v Page (at 13). I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. Once an objection application is made, it is incumbent on the objector to proceed with the application. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia, the Tribunal outlined (at page 6):

It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

[13]     Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purposes of s 148 was clearly outlined (emphasis in original):

27.10b     Replacement item 40 inserts new section 148 which states that the Tribunal has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with Tribunal directions.

27.10c      …These limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes...

[14]     Yinhawangka Gobawarrah has been given sufficient opportunity to comply with directions, and it would be unfair to prejudice Mr Kean with further delay. I do not need to answer the question of whether the licence can be granted using the expedited procedure, because I have concluded the objection should be dismissed.

Determination

[15] The objection application against E08/2992 is dismissed pursuant to s 148(b) of the Act.

Helen Shurven

Member

9 August 2019