Western Desert Lands Aboriginal Corporation on behalf of its members v Birla Maroochydore

[2016] NNTTA 6

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation on behalf of its members v Birla Maroochydore [2016] NNTTA 6 (25 January 2016)

Application No:                  WO2015/0128, WO2015/0129, WO2015/0130 & WO2015/0131

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Western Desert Lands Aboriginal Corporation (WCD2002/002)             (native title party)

-and-

The State of Western Australia  (Government party)

-and-

Birla Maroochydore Pty Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              25 January 2016

Date of reasons:                25 January 2016

Catchwords:  Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page (2001) 166 FLR 266 ('Teelow v Page')

Representative of the        

native title party:              Mr Matthew Kinder, Western Desert Lands Aboriginal Corporation

Representative of the        

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

Representative of the

grantee party:  Ms Sara Winton, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 12 December 2014, the State Government of Western Australia (‘the State’) gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P45/2924, P45/2925, P45/2926 and P45/2927 (‘the licences’) to Birla Maroochydore Pty Ltd without requiring Birla Maroochydore or the State to negotiate with the Western Desert Lands Aboriginal Corporation (‘the Corporation’). The areas of the licences overlap the Corporation’s native title determination WCD2002/002.

2. By including an expedited procedure statement in the public advertisement of the licences, the State has asserted that the grant's can be made without negotiation.  That is, they state the grant of each licence can be made expeditiously, without negotiation between the Corporation, the State, and Birla Maroochydore.

3. The Corporation lodged an objection with the National Native Title Tribunal (‘the Tribunal’) against the application of the expedited procedure to the grant of the licence's on 2 February 2015.  To answer the question of whether the licence's can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter. 

Should the inquiry proceed or should the matter be dismissed?

1. On 14 October 2015, parties attended a status conference with the Tribunal. As well as participating in this inquiry process, Birla Maroochydore was also negotiating on a number of other tenements, and requested these prospecting licences be included in those negotiations, through formal mediation. Where an expedited procedure is on foot, the normal negotiating procedure cannot apply (see s 31 of the Native Title Act 1993 (Cth). In this matter, the State indicated the expedited procedure statement would not be withdrawn, and as such no referral for mediation took place.

2. On 23 October 2015, a directions hearing was held to confirm the parties’ intentions. The representative for Birla Maroochydore advised the Tribunal that an agreement was some way off, particularly without being involved in mediation. I made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the grant attracted the expedited procedure. These directions included the Corporation providing a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 7 December 2015. 

3. Neither contentions nor evidence were received from the Corporation by 7 December 2015.  On 8 December 2015, the State wrote to the Corporation, copying in the Tribunal and all parties, requesting the objection be dismissed because the Corporation had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.  No response was received from the Corporation or other parties.

4. On 13 January 2016, the Tribunal wrote to the Corporation and Birla Maroochydore, asking them to respond to the State's request to dismiss the objection.  Given office closures over the festive season, parties were given until 20 January 2016 to respond.  No response was received from the Corporation or Birla Maroochydore. 

5. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, which I have had regard to in this matter.  In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  As at the date of this decision, no response has been received from the Corporation as to why the objection should not be dismissed, nor has any request for extension of time to comply with directions been received, nor any reason for non-compliance.

6. In the circumstances, the Corporation have been given sufficient opportunity to comply with directions set, and it would be unfair to prejudice the other parties with further delays.  I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against prospecting licences P45/2924, P45/2925, P45/2926 and P45/2927 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
25 January 2016