Western Desert Lands Aboriginal Corporation on behalf of its members v Exterra Resources Limited

[2016] NNTTA 2

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation on behalf of its members v Exterra Resources Limited [2016] NNTTA 2 (20 January 2016)

Application No:                  WO2015/0118

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-

Exterra Resources Limited   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              20 January 2016

Date of reasons:                20 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:  Mr Yaroslav Legeyda, 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 licence E45/4443 to Exterra Resources Limited without requiring Exterra Resources Limited or the State to negotiate with the Western Desert Lands Aboriginal Corporation. The area of the licence overlaps the Western Desert Lands Aboriginal Corporation’s native title determination WCD2002/002.

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted that the grant can be made without negotiation.  That is, they state the grant of this licence can be made expeditiously, without negotiation between the Western Desert Lands Aboriginal Corporation, the State, and Exterra Resources Limited.

3. Western Desert Lands Aboriginal 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 on 2 February 2015.  To answer the question of whether the licence 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. Parties attended status conferences with the Tribunal, and reported they were attempting to negotiate an agreement.  On 14 October 2015, Mr Yaroslav Legeyda, the representative for Exterra Resources Limited, advised the Tribunal that agreement was not likely.  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. The Western Desert Lands Aboriginal Corporation was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 9 December 2015. 

2. Neither contentions nor evidence were received from the Western Desert Lands Aboriginal Corporation by 9 December 2015.  On 11 December 2015, the State wrote to the Tribunal and all parties requesting the objection be dismissed because the Western Desert Lands Aboriginal Corporation had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.  No response was received from the Western Desert Lands Aboriginal Corporation.

3. On 5 January 2016, the Tribunal wrote to the Western Desert Lands Aboriginal Corporation and Mr Legeyda, asking them to respond to the State's request to dismiss the objection.  Given office closures over the festive season, parties were given until 15 January 2016 to respond.  No response was received from Mr Legeyda or the Western Desert Lands Aboriginal Corporation. 

4. 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 Western Desert Lands Aboriginal 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.

5. In the circumstances, the Western Desert Lands Aboriginal 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 exploration licence E45/4443 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
20 January 2016