Western Desert Lands Aboriginal Corporation on behalf of its members v Tom Langley Mineral Holdings Pty Ltd

[2016] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation on behalf of its members v Tom Langley Mineral Holdings Pty Ltd [2016] NNTTA 4 (21 January 2016)

Application No:                  WO2015/0545

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; WCD2013/002)  (native title party)        

-and-

The State of Western Australia    (Government party)

-and-

Tom Langley Mineral Holdings Pty Ltd           (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              21 January 2016

Date of reasons:                21 January 2016

Catchwords:  Native title – future act – proposed grant of exploration 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 Tom Langley

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 12 June 2015, 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 exploration licence E45/4524 to Tom Langley Mineral Holdings Pty Ltd (‘Tom Langley’) without requiring Tom Langley or the State to negotiate with the Western Desert Lands Aboriginal Corporation ('the Corporation'). The area of the licence overlaps the Corporation’s native title determinations WCD2002/002 and WCD2013/002.

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without negotiation.  That is, they state the grant of this licence can be made expeditiously, without negotiation between the Corporation, the State, and Tom Langley.

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 on 24 June 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. On 4 November 2015, Mr Langley, as the representative for Tom Langley, advised the Tribunal the grantee party wanted this matter to proceed to an inquiry. Directions were made requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant.  The Corporation was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 16 December 2015. 

2. Neither contentions nor evidence were received from the Corporation by 16 December 2015.  On 17 December 2015, the State wrote to the Tribunal and the Corporation requesting the objection be dismissed because the Corporation had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 17 December 2015 and 5 January 2016, the Tribunal wrote to the Corporation and Mr Langley, asking them to respond to the State's request to dismiss the objection.  Parties were ultimately given until 11 January 2016 to respond, taking into account the festive season and various office closures.  No response was received from Mr Langley or the Corporation.   On 12 January 2016, the Tribunal wrote to all parties stating:

   If no further correspondence or information is provided to the Tribunal in this matter from the native title party or their representative in regards to lack of compliance with these directions, Member Shurven will consider this matter for dismissal on Friday 15 January 2016.

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.

5. As at the date of this determination, no response has been received from the Corporation as to why the objection should not be dismissed, nor has any request for extension of 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 exploration licence E45/4524 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Helen Shurven
Member
21 January 2016