Wangkatja Tjungula Aboriginal Corporation RNTBC v Grant Wayne Densley
[2024] NNTTA 64
•5 September 2024
NATIONAL NATIVE TITLE TRIBUNAL
Wangkatja Tjungula Aboriginal Corporation RNTBC v Grant Wayne Densley & Ors [2024] NNTTA 64 (5 September 2024)
Application No: | WO2024/0040 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wangkatja Tjungula Aboriginal Corporation RNTBC (WCD2023/002)
(native title party)
- and -
Grant Wayne Densley, Guy Alan Jordan, Matthew James Negus, Marshall Roy Tucker
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 5 September 2024 |
Catchwords: | Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – directions extended - failure to comply with directions – s 148(b) – objection application dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b) |
Cases: | David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTA 333 (Stock v Giralia) Evelyn Gilla & Others on behalf of Yugunga-Nya (WC1999/046) & Marjorie Ann Molloy, Noonpark Pty Ltd, Katherine Anne Barritt, Mark Neale Tessman, Mavia Pty Ltd [2019] NNTTA 94(Yugunga-Nya v Molloy) Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) |
| Representatives of the native title party: | Verna Vos and Quinton Tucker, Wangkatja Tjungula Aboriginal Corporation Vanessa Malu Cecchi, Umanity Legal |
| Representative of the grantee party: | Grant Wayne Densley |
| Representatives of the Government party: | Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
On 22 December 2023, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P 39/6437 to grantee parties Grant Wayne Densley, Guy Alan Jordan, Matthew James Negus and Marshall Roy Tucker. The s 29 notice included a statement that the State considers the grant of the proposed licence is an act attracting the expedited procedure under the Native Title Act (expedited procedure statement).
If the expedited procedure applies, the State may grant the proposed licence without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.
The proposed licence is located approximately 42 km north easterly of Edjudina in WA’s Goldfields region and covers an area of approximately 2 km². Further, the proposed licence sits wholly within the area of the Nyalpa Pirniku native title determination area, held in trust by the Wangkatja Tjungula Aboriginal Corporation (WTAC) as the registered native title body corporate.
On 15 January 2024, the legal representative for WTAC lodged an objection with the National Native Title Tribunal in response to the State's assertion that the expedited procedure applies to the grant of the licence. The objection application was lodged within the timeframe outlined in s 32(3) of the Native Title Act and therefore, pursuant to s 32(4), the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.
Procedural Steps Taken
Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.
While WTAC indicated it was in the process of updating its preferred heritage agreement through which the objection could be resolved, at the first preliminary conference held on 21 February 2024, the grantee party indicated a preference for the matter to proceed to inquiry. The matter was listed for a directions hearing on 17 April 2024.
Subsequent to this in early March, the legal representatives of WTAC corresponded with the Tribunal with a general request to adjourn directions hearings on all WTAC matters until at least 19 April to provide time for WTAC to finalise the proposed new standard agreement. Given the proximity of the planned directions hearing and the extension date sought, I maintained my intention proceed with a directions hearing on 17 April. In late March however, the WTAC representative made a further request to adjourn the directions hearing on this matter for a week, due to travel commitments for other matters it was also representing. The grantee party objected to this extension.
Given the absence of WTAC representation at the preliminary conference, I decided to adjourn the directions hearing until 1 May 2024 to provide an opportunity for all parties to be present.
On 24 April 2024, I was informed that WTACs legal representative would be ceasing to act for WTAC as of 24 May 2024. This was discussed and confirmed at the directions hearing on 1 May. As a result of this confirmation, in setting directions I provided WTAC with more time than is normally scheduled to provide contentions and evidence in order to cater for the change over of representation. The compliance date set for WTAC materials was 3 July 2024, 9 weeks from the setting of directions.
In mid-May, WTACs new representatives were confirmed to the Tribunal. For the avoidance of doubt, a further copy of the directions was provided to the new representatives by the Tribunal on 28 May 2024.
On 10 July 2024, the Tribunal emailed all parties, noting that WTAC had failed to comply with the directions and that the objection was now at risk of dismissal per s 148(b) of the Native Title Act. Parties were given until close of business 17 July 2024 to provide a response. On 14 July 2024 WTAC requested an extension of six weeks to adequately address the matter.
Directions were suspended to allow time for the State and grantee party to provide comment on the requested extension. Having received and considered these comments, on 19 July 2024 I made new directions which provided a four-week extension to WTAC to 31 July 2024. In doing so I further took into account the circumstances presented with a change of representation and the impact this may have on WTAC’s ability to present its case while also considering the time taken to that point, the extra time originally provided to WTAC and the potential prejudice further delays may have on the interests of the other parties. In the correspondence to the parties attaching these new directions, it was noted that further extensions would be unlikely.
No compliance was received by WTAC on 31 July. On 7 August 2024, the Tribunal emailed all parties, noting that WTAC had failed to comply and that the objection was again at risk of dismissal per s 148(b) of the Native Title Act. Parties were given until close of business 14 August 2024 to provide a response. No response was received from WTAC at this time.
On 19 August 2024, the Tribunal wrote to all parties and confirmed that WTAC had not provided a response and the matter would be again considered for dismissal. On this same date, a new WTAC representative requested a further extension of time for six weeks. The Tribunal sought comment from the State and the grantee party and in response, the grantee party requested the dismissal proceed while the State did not oppose the extension.
I also note that during this time, the Tribunal provided the following assistance to WTAC:
·on 13 May 2024 the Tribunal provided the new WTAC representatives with a list of all WTAC matters before the Tribunal, including information as to the status of each matter and information pertaining to the Tribunal’s processes and practices;
·on 19 July 2024 the Tribunal provided the WTAC representatives with a further list of WTAC matters, including information as to the status of each matter; and
·ongoing information and assistance to the WTAC representatives from Tribunal Officers to assist in the management of WTAC matters.
Consideration of Dismissal
While the new representative stated it was acting on behalf of WTAC, which I accepted following confirmation from WTAC, part of the reasoning for the extension request was that:
WTAC is waiting on confirmation from its existing legal services provider whether it will be able to assist further, and in a timely fashion. WTAC is concurrently assessing its options as to whether to engage myself or another legal services provider to progress the matter as a priority and WTAC requests an extension to be able to seek confirmation from its existing legal services provider on its expected timelines, engage different counsel should the timelines be unsatisfactory, obtain advice, have the Board consider the advice, then have the statement of contentions drafted and evidence obtained.
In effect, WTAC was seeking an extension so it could settle its representation, have this representative develop and provide advice to the Directors and following the consideration of this advice by Directions, collect evidence and develop contentions for the expedited procedure inquiry.
Section 142 of the Native Title Act provides that the Tribunal must ensure every party is given a reasonable opportunity to present their case. This is not open ended however and pursuant to s 148(b) of the Native Title Act, the Tribunal may dismiss an objection application where the native title party has failed within a reasonable time to proceed with the objection application or comply with a direction of the Tribunal.
As noted in Teelow v Page [13], s 148 is unfettered, however it is understood that the exercise of the discretion to dismiss provided by s 148 has significant consequences for the native title party, is not an action to be taken lightly and should only be performed with consideration of a number of factors on a case by case basis.
The central questions as posed within s 142 and s 148 are whether WTAC has been given a reasonable opportunity to present its case and whether WTAC has failed to proceed with the objection application or comply with a direction of the Tribunal within a reasonable time.
Examining the procedural history of this matter, the needs of WTAC, given its circumstances, were taken into account from the first setting of directions with extra time being provided than the normal Tribunal time frames. As mentioned, a total of 9 weeks from the setting of directions was initially provided, noting that the setting of directions occurred after a 2 week delay in the convening of a directions hearing at WTACs request and 10 weeks after becoming aware the matter would proceed to inquiry at the first preliminary conference.
This was followed by the first instance in which this matter was notified as being at risk of dismissal, after which WTAC sought further time. Having again taken into account the circumstances of WTAC and seeking to provide it with an ability to present its case, I approved a further 4 week extension, providing 13 weeks from the setting of directions and noting that further extensions would be unlikely.
Having exhausted this time frame and again being notified the matter would be considered for dismissal, a further extension request was submitted. Perhaps the main issue with this extension request is that it is not simply a request for time to finalise witness statements and materials. Instead, it is a request to allow time for the entire process of procuring or finalising representation, developing and providing advice to the WTAC Board on the matter, having the Board consider this advice and only then commencing to take evidence and develop contentions.
It is the case here that the time frames provided to that point were to allow these steps to be taken. Additionally, should the final request have been granted, this would have provided 19 weeks for WTAC to comply, however there was no guarantee implicit in the extension request that evidence would be provided, more that consideration would be given to taking evidence and developing contentions after a series of other steps were taken, steps I had already catered for in the time frames previously provided.
Analogous issues were experienced in Stock v Giralia and Yugunga-Nya v Molloy resulting in the dismissal of those objections. Similarly to Stock v Giralia, it seems apparent that at the time of the second consideration of dismissal notice and subsequent extension request, no steps had actually been taken to prepare the objectors’ case despite the time elapsed from the lodging of the objection, the setting of the directions and the previously noted assistance and information provided by Tribunal officers.
In conducting the process of this inquiry, a number of decisions have been made to take into account WTAC’s circumstances such as delaying the Directions hearing, allocating more time than is generally provided for directions compliance and accepting a long extension request after the matter was at risk of dismissal on the first occasion. Because of these factors, I have formed the view that WTAC has been provided with a reasonable opportunity to present its case.
In regard to the question posed by s 148, I have formed the view that despite being provided with more than three months to do so, it appears that no or minimal steps have been taken to prepare materials for the inquiry to date – “to prepare the objector’s case”, as Member Franklyn describes it in Stock v Giralia. Even without the final extension request, which provides little comfort this issue would be overcome, I have formed the view that WTAC has failed to progress its objection application within a reasonable time and that a further extension would be unreasonable in the circumstances.
Having regard to all of the facts and circumstances of this matter and applying the principles enunciated in Teelow v Page at [13], I am satisfied that the objection application should be dismissed.
Determination
The expedited procedure objection application in relation to P 39/6437 is dismissed pursuant to s 148(b) of the Native Title Act.
Mr Glen Kelly
Member
5 September 2024
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