Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v FMG Resources Pty Ltd
[2025] NNTTA 16
•24 June 2025
NATIONAL NATIVE TITLE TRIBUNAL
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v FMG Resources Pty Ltd & Another [2025] NNTTA 16 (24 June 2025)
Application No: | WO2023/0291, WO2023/0685, WO2023/0686, WO2023/0706, WO2023/0707 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tjurabalan Native Title Lands Aboriginal Corporation RNTBC (WCD2001/001)
(native title party)
- and -
FMG Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 24 June 2025 |
Catchwords: | Native title – future acts – proposed grant of exploration licences – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application dismissed |
Legislation: | Aboriginal Cultural Heritage Act 2021 (WA) (repealed) Aboriginal Heritage Act 1972 (WA) Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b) |
Cases: | MICHAEL DANIEL TEELOW/MICHAEL PAGE/NORTHERN TERRITORY [2001] NNTTA 107; 166 FLR 266 (TEELOW V PAGE) |
| Representative of the native title party: | Mr Shaz Rind, Arra Group |
| Representative of the grantee: | Mr Colin Johnston, Fortescue Metals Group Limited Mr Richard Anthonisz & Ms Elisa O’Sullivan, Ashurst Australia |
| Representative of the Government party: | Ms Michelle Rogers & Mr David Crabtree, Department of Energy, Mines, Industry Regulation & Safety |
REASONS FOR DISMISSAL
Background
The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant five exploration licences to FMG Resources Pty Ltd. The s 29 notices included a statement that the State considers the grant of the proposed licence to be an act attracting the expedited procedure under the Native Title Act.
A general description of the licences is as follows:
·E80/5788, notified on 9 December 2022, located approximately 225 km south easterly from Halls Creek and covering an area of approximately 556 km2.
·E 80/5790, notified on 26 May 2023, located approximately 245 km south easterly from Halls Creek and covering an area of approximately 643 km2.
·E 80/5791, notified 28 April 2023, located approximately 265 km in a southerly direction from Halls Creek and covering an area of approximately 157 km2.
·E 80/5792, notified on 23 June 2023, located approximately 267 km south easterly from Halls Creek and covering an area of approximately 625 km2.
·E 80/5793, notified on 23 June 2023, located approximately 244 km in a southerly direction from Halls Creek and covering an area of approximately 642 km2.
The licences are either partly or entirely overlapped by the Tjurabalan native title determination (WCD2001/001, WAD160/1997). This provides the Tjurabalan registered native title body corporate, the Tjurabalan Native Title Land Corporation which holds the native title in trust for the Tjurabalan people, with standing to object to the application of the expedited procedure over these licences.
Objections were made to the application of the expedited procedure for each of these licences by Tjurabalan through Cross Country Native Title Services in the case of E80/5788 and the Kimberley Land Council (KLC) for the remainder. Each of these objection applications were lodged within the timeframe outlined in s 32(3) of the Native Title Act and therefore, under s 32(4), the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.
Should the expedited procedure be found not to apply, the matters are then subject to the right to negotiate in accordance with s 31 of the Native Title Act.
Initially, Member Eaton was appointed under a delegation from the President of the Tribunal to constitute the Tribunal for the purposes of an inquiry in regard to E80/5788. Due to their later notification and under a renewed delegation, I was appointed to constitute the Tribunal for E 80/5790 – E 80/5793. Subsequent to this, E80/5788 was reallocated to myself to enable all five matters to run together.
Procedural History
On 6 April 2023 and consistent with Tribunal practice at the time, Member Eaton made directions for the inquiry concerning E80/5788 with compliance dates commencing after the close date for objections. During the course of the first preliminary conference on 5 May 2023, parties indicated they were hopeful of resolving the objection by agreement with Cross Country indicating a copy of the preferred heritage agreement had been provided to FMG, which FMG indicated it was reviewing. Parties sought, and were granted, an extension to enable this review and further sets of document exchange to occur.
At a Member’s Case Management Conference on 23 June 2023, Member Eaton was informed that FMG were continuing their review of the agreement and parties sought further time to allow this and further dialogue between the parties to continue. Member Eaton provided an extension on this same date.
A further extension was provided on 16 August 2023. In the main, this was due to uncertainty created by the enactment and subsequent repeal of the Aboriginal Cultural Heritage Act 2023 (WA) (ACHA). In light of this, parties were keen to continue with dialogue however were uncertain of the terms that would need to be reflected in an agreement due to this legislative flux.
Following the acceptance of objections against the application of the expedited procedure to the grant of E 80/5790 – E 80/5793 during August of 2023, the inquiry in regard to E80/5788 was reallocated to myself to enable the matters to be coordinated. In light of the difficulties described by the parties in regard to the ACHA repeal and the new need to co-ordinate case management across these matters, I took the decision to vacate directions on E80/5788, which occurred on 30 August 2023.
On 31 August 2023, KLC notified the Tribunal it no longer represented Tjurabalan in any matters and that representation was now with Cross Country. As a result of the matters now all falling under the same representation, all matters were case managed together from this point forward, with a pause taken to await clarity on State heritage legislation.
A case management conference was convened on 8 November 2023 to correspond with the passage of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) on 15 November 2023. This repealed the ACHA and reinstated an amended Aboriginal Heritage Act 1972 (WA). This also created certainty for the parties in regard to the statutory framework, and given this, parties were pressed on their intention to reach agreement or otherwise.
A Tjurabalan representative was unavailable for this conference, however corresponded with the Tribunal that agreement drafts had been exchanged, that the document was with Tjurabalan who were preparing comments and that there was optimism that agreement resulting in the withdrawal of the objection would be able to be reached. FMG echoed these same sentiments during the case management conference.
A further case management conference was convened on 7 February 2024 however this status had not changed. The draft agreement remained with Tjurabalan who indicated that instructions on proposed amendments were to be provided on the following day. This again remained the status by the case management conference convened on 20 March 2024, with FMG noting in correspondence prior to this conference that the Tjurabalan representative had been unable to receive complete instructions but that the preference remained to resolve the objections by agreement. Tjurabalan concurred with this update at the 20 March case management conference, however noted it now had sufficient instructions to make some progress and that a draft would be reverted to FMG in the following weeks.
This status was unchanged at the following case management conference on 1 May 2024 however, with Cross Country advising that a Tjurabalan Directors meeting in which it expected to receive further instructions had been postponed. FMG notified the Tribunal it had been kept updated and did not have concerns about the delay.
Due to party availability, the next case management conference was scheduled for 3 July 2024. Just prior to this date, Tjurabalan sought an adjournment due to an upcoming Directors meeting at which it was expected that instructions would be provided to proceed with agreement negotiations. Due to the lack of progress however, I determined the case management conference would proceed as planned.
The Tjurabalan representative was not present at this 3 July case management conference, perhaps due to a misunderstanding following the denied request. At this conference, I set an action for Tjurabalan to advise, by 31 July 2024, of the next scheduled board meeting after July 12 (the date of the adjournment request), the time frames in which instructions may be provided and an update of progress between parties following provision of these instructions.
This was acknowledged and committed to by the Tjurabalan representative in correspondence following receipt of this advice from the Tribunal, however no such reporting was received. On 5 August, the Tribunal sent a further request for information from Tjurabalan, to which it replied that it had in fact provided a responsive draft to FMG and was awaiting a response.
The matters were listed for a further case management conference on 21 August 2024 at which it was advised that a response had been provided by FMG, that the Tjurabalan representatives would seek instruction at a directors meeting the following week and that in general, progress continued to be made on resolving the matter by agreement. It was decided to allow the parties to continue with this process unaided as it appeared that despite delays, agreement was in fact close and parties were committed to finalising. As in previous conversations however, I noted the age of the matters, indicating there was a growing sense of urgency to finalise any agreement process as a review of approach would need to occur should time frames slip further.
The matter was relisted for a case management conference on 16 October 2024. In the intervening period, the Tribunal was notified of a change in legal representation from Cross Country to Mr Shaz Rind of Arra Group. At the conference, Mr Rind indicated there had been little hand over from the previous representatives and that he was not in possession of the agreement draft, however if FMG agreed to send a copy, it would be able to be placed before the Tjurabalan board at a meeting scheduled for 31 October for instructions. FMG agreed to provide this and indicated it remained committed to resolving the matter by agreement.
The matter was again relisted for 11 December 2024. The Tjurabalan representative was absent from this case management conference. FMG advised that it had provided the agreement draft as requested and that aside from an invitation to meet with the Tjurabalan Board, to which FMG stated it had responded in the affirmative and was awaiting discussion on a date, there had been no further communication from Tjurabalan. As such, no further progress had been made in the preceding months.
Both the State and FMG expressed frustration at the state of events as it stood at this case management conference, particularly given agreement had appeared within sight just a few months prior. As a result of this, given the significant age of the matters, given the long-standing repeated attempts to reach agreement and given communication from Tjurabalan had now fallen away, FMG sought the matter be put to inquiry. The State was supportive of this view for the same reasons.
After considering these factors, I agreed and set the matter for a Directions Hearing on 22 January 2025. This was not without regret, however the age of the matters and the cessation of communication from Tjurabalan left little choice, particularly in light of previous urgings to finalise agreement processes.
On 13 December 2024, the Tjurabalan representative corresponded with the Tribunal apologising for his non-attendance. In this correspondence Mr Rind asserted the invitation to FMG to attend a Tjurabalan Board meeting had not been responded to, which contrasts with statements made by the FMG representative during the conference. The correspondence from Mr Rind also noted the date of the upcoming Directions Hearing and a request was made to consider cultural business which occurs at that time of year. This request was noted as these factors are normal considerations the Tribunal is sensitive to, with representatives invited to make submissions to ensure cultural matters are taken into account in the setting of directions.
The Tjurabalan representative was absent from the 22 January 2025 directions hearing. At this hearing, FMG stated that it had sought to continue to negotiate the agreement that was substantially agreed with the previous Tjurabalan representative and had responded in the affirmative to meet with the Tjurabalan directors, but had not been provided with any response from the new representative. Following discussion I decided to set directions, which were provided to all parties on 29 January 2025. In these directions, the date of compliance for Tjurabalan was set for 26 March 2025.
No communication was received by the Tribunal from Tjurabalan following the distribution of directions however, on 18 March 2021 Mr Rind made an urgent request for a copy of the directions pertaining to WO2023/0291, citing a recent receival of instructions and a lack of hand over from the previous legal representatives, although this change over had occurred in early October 2024. These directions were again provided on this same day and included all matters considered in this determination, as they did when originally distributed on 29 January.
Tjurabalan made an extension request for all matters on 24 March 2024, requesting a revised compliance date of 30 May 2024. Several reasons were provided for this request. Firstly the Tjurabalan representative stated he had not received proper notice of the 22 January 2024 directions hearing, that a law and culture break had been occurring until early March making communications difficult, that Tjurabalan had a new Board and it sought to meet with proponents face to face, that the FMG representative had not responded to requests to meet with the Tjurabalan Board and that a slight delay would not prejudice the other parties.
The State did not oppose this extension however FMG advised that it did not consent to the request. In setting out its views, FMG stated a view that there has been an absence of meaningful engagement from Tjurabalan in negotiations since the appointment of Mr Rind, despite there being ample time for engagement to occur.
Having considered the submissions of the parties I approved a six week extension for Tjurabalan and set a new compliance date of 7 May 2025. In communicating this extension with the revised directions on 25 March 2025, it was noted that:
·I continued to encourage the parties to resolve the objections via agreement.
·I understood that a copy of the draft agreement was sent to Mr Rind from FMG at his request following the Member’s Case Management Conference on 16 October 2024 and noted that this may be the basis of conversations to resolve the objections or that it could be re-sent if necessary.
·It was my understanding that FMG had reached out to Mr Rind to seek to organise a conversation with the Tjurabalan Board however these attempts at communication were not able to achieve results due to a lack of response from Mr Rind.
·Negotiations to resolve objections may continue while directions are in place. Positive and demonstrable progress in this regard may lead to review of directions.
On 2 May 2025 a further extension request was submitted by Mr Rind on behalf of Tjurabalan. In this request, Mr Rind notes that he had sought recent instructions, on 1 May 2025, from the Tjurablan Chairperson to progress the matter based on the draft provided by FMG in October 2024. Mr Rind also stated that this draft had not been presented to the Tjurabalan Board, despite assurances in October 2024 that it would be, and that substantial discussion and additional work was required. Mr Rind further outlined that there was a meeting of the Tjurabalan Board scheduled for the following week however it remained unclear whether the draft would be put before the Board on that occasion, although that seemed the inference.
Mr Rind had not specified an extension time frame, which the Tribunal inquired on. This was clarified to be for a further 6 weeks until 14 June 2025. Additionally, Mr Rind corresponded on 5 May suggesting it may be useful to place these matters into a s 150 case management conference. The views of the State and FMG on the extension request and a s 150 referral were sought.
The State opposed the extension request but did support a s 150 conference, although the latter would have no utility without the former. In their reply, FMG expressed that a further 6 week extension was not justified and did not consider a s 150 mediation would assist. In arriving at this view, FMG provided that a copy of the draft agreement was provided on 16 October 2024 which was acknowledged by Mr Rind at the time. FMG further note that it appeared from Mr Rind’s extension request that instructions were only received to negotiate the draft agreement on 1 May 2025, some 6 months after receiving FMG’s comments.
Having considered the submissions of the parties I declined the extension request. In communicating this with the parties it was noted that:
·I had considered all the correspondence from the parties and the history of the matters, noting the earliest notification day for WO2023/0291 was 9 December 2022, with the remainder in the first half of 2023.
·I had formed the view that the native title party had been provided with sufficient opportunity to present its case, having been provided with 15 weeks or almost 4 months.
·In relation to WO2023/0291, Tjurabalan was provided with a number of extensions by Member Eaton during the course of 2023 to assist agreement making and once reallocated to myself, directions were vacated for this same purpose as the parties appeared to be moving towards an agreed solution.
·In late 2024 following the change of representative, Tjurabalan had become unresponsive and agreement negotiation had not been progressed, despite efforts of FMG and regular case management conferences before myself at which the Tjurabalan representative did not appear.
·Directions were reinstated for WO2023/0291 and put in place for all other matters in January 2025 and Tjurabalan had been provided with an extension as requested, however given Mr Rind’s correspondence, it appeared no effort to further progress the matter had been made.
By 7 May 2025, no materials had been received from Tjurabalan. As no extension was provided, parties were notified the matter would proceed to dismissal.
Consideration
Under s 148(b) of the Native Title Act, 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 objection application or to comply with a direction of the Tribunal. While the Tribunal has broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.
The nature of the expedited procedure and the principles relevant in considering 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]. This includes that the discretion of the Tribunal is dependent on a range of circumstances, including that the right to negotiate, the result if the expedited procedure is found not to exist, is a valuable right that should not be lightly dispensed. Further considerations outlined in Treelow and Page at [13] include:
i.whether the failure to comply was as a result of the actions of the native title party or their representative or was due to some other cause;
ii.whether there has been a reasonable explanation provided for non-compliance, noting that the giving of an explanation may not itself prevent the exercise of the Tribunals discretion;
iii.whether the failure of the objector to comply has resulted in prejudice to other parties;
iv.the history of the proceedings;
v.whether the inquiry itself raises novel or a series of issues that make it not unreasonable to not comply with directions, and;
vi.the consequences of the dismissal.
A strong consideration in these matters has been the large area covered by the licences within the Tjurabalan determination area, although a number are only partly overlapped by the determination. These can be expected to give rise to exploration activity over a broad area which may give rise to interaction with Tjurabalan community activities at some level as well as possible interactions with heritage places unless proper care is taken. This illustrates the further consequences of a dismissal in these matters in addition to not having access to the alternative in the right to negotiate, should the expedited procedure be found not to apply.
These consequences weigh heavily in this dismissal. They could have been avoided however, if Tjurabalan or its representative had continued its progress towards agreement, which appeared close to finalisation prior to the change of representative in October of 2024. Similar could be said if Tjurabalan provided evidence to the Tribunal that resulted in a finding that the expedited procedure did not apply. Neither of these actions were taken.
It can be seen from the procedural history that a long period of time was provided for parties to reach agreement. This was complicated by repeated changes to Aboriginal heritage laws, however parties sought and were provided with a further year to reach agreement. While progress was slowed due to Board changes at Tjurabalan in mid-2024, in the instance that genuine efforts are being made to resolve objections by agreement in a reasonable time frame, the Tribunal will provide time and assistance if required, to enable this.
I was satisfied that despite the time taken, genuine efforts were being made to reach agreement until the change in representation in October 2024. Further time was provided for a settling in period and for documents to be re-distributed, however following this, it appears that communications from the Tjurabalan representative effectively ceased.
In the first instance, a request was made for FMG to meet with the Board which was responded to in the affirmative, however this was not acted upon by Tjurabalan. Issues were then raised by the Tjurabalan representative that FMG had not shared the documentation as requested and had not responded to the request to meet with the Board. Both of these claims were refuted by FMG and run counter to the previous history of negotiation in these matters.
The lack of communication from the Tjurabalan representative was part of the rationale for convening the December 2024 case management conference, to provide the Tjurabalan representative with an opportunity to discuss and to potentially generate some actions to finalise an agreement. Mr Rind did not appear at this case management conference however, so this conversation was unable to occur.
At this point, given the extensive time and opportunity provided, I came to the view that the lack of action from Tjurabalan had become prejudicial to the other parties and decided to schedule a Directions Hearing. This was scheduled some months after the Member’s Case Management Conference to provide further time for the parties to reach accord if they were able, which would have obviated the necessity for the setting of directions. While FMG and the State submitted the scheduling of a directions hearing was now the reasonable course, disappointment was expressed by both these parties given how close it appeared the matters had been to being resolved by agreement.
Tjuarablan sought an extension to its compliance date for the reasons outlined at [27]. Despite both FMG and the State opposing this request given the age of the matters, I accepted the reasons provided by Tjurabalan and granted the extension to provide a further opportunity for evidence to be provided into the inquiry.
The extension request made on 2 May was altogether different as the reasons provided for this extension quite remarkably misconstrued the status of the matter. Mr Rind was in effect, seeking an extension so the Tjurabalan Board could take what would appear to be its first consideration of the agreement draft since the change of legal representation. While it seems extraordinary that the Board had not been presented with this draft despite indications to the contrary dating back to October 2024, the time for this had passed.
In making the extension request, Mr Rind and Tjurabalan seemed blind to the fact that they were now in the midst of an inquiry process in which they were expected to provide evidence for a determination to be made on the application of the expedited procedure. Given the remarks of Mr Rind, it appeared that despite being provided with almost 4 months to do so, no effort had been undertaken to gather evidence and develop materials. Instead, a belated effort was made to focus on the agreement draft, despite around 2 years already being provided for this.
Given the history of these proceedings and, in particular, the almost complete inaction on the part of Tjurabalan since the change of representation to Mr Rind, I had little confidence that any action would be taken. As can be seen in the procedural history and this consideration, once the change in representation occurred, Tjurabalan had repeatedly and inexplicably failed to respond to parties when an agreement seemed imminent, repeatedly failed to appear before the Tribunal when provided the opportunity and subsequently, failed to provide materials into the inquiry despite being provided with a generous amount of time which included an extension.
While being mindful of the consequences of dismissal these objections for Tjurabalan, a very significant opportunity had been provided for the matter to be resolved by agreement in the first instance. Having exhausted this possibility, Tjurabalan then failed to act in relation to the inquiry process and made a request that, in my view, was not reasonable in the circumstances. This is particularly in light of the long history of the matters and the almost complete lack of engagement and activity on the part of the native title party since the change of representation in October 2024.
Taking these factors into consideration, I have regretfully formed the view that Tjurabalan have been afforded sufficient opportunity to progress the objection applications but have failed to do so within a reasonable time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed.
Determination
The expedited procedure objection applications in relation to E80/5788, E 80/5790, E 80/5791, E 80/5792, E 80/5793 are dismissed pursuant to s 148(b) of the Native Title Act.
Mr Glen Kelly
Member
24 June 2024
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