Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Holocene Pty Ltd

[2019] NNTTA 95

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Holocene Pty Ltd & Anor [2019] NNTTA 95 (7 November 2019)

Application No: WO2019/0171 & WO2019/0190

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

- and -

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

Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (WCD2002/002)

(native title party)

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Holocene Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	7 November 2019

Catchwords:	Native title – future act – proposed grant of exploration permits – expedited procedure objection applications – failure to comply with directions – objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) ss29, 31, 32, 148(b)

Cases:

Teelow v Page [2001] NNTTA 107; 166 FRL 266

David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Ms Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Representative(s) of the grantee party: Mr Daniel Murdzoski & Mr Greg O’Shannessy, Murcia Pestell Hillard Lawyers

Representative of the Government party: Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licences E45/5314 and E69/3585 (permits) to Holocene Pty Ltd (grantee party). The notification day for E45/5314 was 26 October 2018 and the notification day for E69/3585 was 9 November 2018. The s 29 notices included a statement that the State considers the grant of the permits 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 permits without compliance with the negotiation procedure under s 31 of the NTA.

3. The areas of the proposed permits are situated wholly within the area of the native title determination for the Martu and Ngurrara. The Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC holds exclusive native title rights and interests on behalf of the Martu and Ngurrara in relation to the lands and waters of the permits. On 25 February 2019 and 5 March 2019, the Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (native title party) lodged objections with the National Native Title Tribunal against the inclusion of the expedited procedure statement. The native title party’s objections were lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party.

4. The native title party’s objections were made 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 permits is an act attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purpose of the inquiry in these matters.

Relevant facts

1. On 18 March 2019 and 19 March 2019 the Tribunal notified parties of the objections and provided information about the inquiry process. The Tribunal also notified parties of the status conferences which were convened on 3 May 2019, 19 June 2019, 3 July 2019, 17 July 2019, 14 August 2019 and 4 September 2019. The native title party representative advised that a draft Land Access Agreement (LAA) was sent to the grantee party on 18 April 2019. On 2 May 2019, Murcia Pestell Hillard Lawyers contacted the Tribunal and the native title party representative advising that they represent the grantee party. The native title party re-sent the LAA to Murcia Pestell Hillard on 6 May 2019.

2. At the status conference on 19 June 2019, the grantee party representative advised that they had received the LAA from the native title party and indicated that comments would be provided to the native title party in respect to the LAA. At the status conference on 17 July 2019, the grantee party representative was unavailable. The native title party representative advised that they had not received any comments on the LAA from the grantee party representative. On 13 August 2019, the Tribunal was advised by Murcia Pestell Lawyers that representation had been transferred to a new person as the previous representative was no longer with the company. At a status conference on 14 August 2019, the new grantee party representative confirmed that they had a copy of the LAA. At the 4 September 2019 status conference the grantee party representative advised they hadn’t made any substantive progress with the LAA. Given the age of the matters and the lack of substantive progress directions were made and sent to all parties on 6 September 2019.

3. I amended these directions on 10 September 2019 at the request of the Government party. The amended directions were sent to all parties on 11 September 2019. The native title party was directed to provide a statement of contentions, documentary evidence and witness statements for the objection application, verified where possible by affidavit, on or before 25 October 2019. The native title party did not provide any contentions or evidence by the due date, and has not made any request for an extension of time to do so.

4. On 28 October 2019, the Tribunal wrote to the representatives of the native title party and grantee party, noting the native title party’s non-compliance asking whether the native title party does intend to comply in these matters and if so will they be seeking an extension in relation to Direction 2. No response was received from the representatives for the native title party or grantee party.

Consideration of the 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 a direction are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of these matters.

4. I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection applications 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 extension of time. Further, the native title party has not responded to the Tribunal’s advice despite being given an opportunity to do so.

6. In the circumstances, the native title party has had sufficient opportunity to comply with directions set by the Tribunal or make a request for an extension of time. Having regard to all of the facts and circumstances of these matters, I am satisfied that the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the permits is an act attracting the expedited procedure.

Decision

1. The objection applications against E45/5314 & E69/3585 are dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
7 November 2019