Wintawari Guruma Aboriginal Corporation RNTBC v Baracus Pty Ltd

[2018] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL

Wintawari Guruma Aboriginal Corporation RNTBC v Baracus Pty Ltd and Another  [2018] NNTTA 49 (29 August 2018)

Application No: WO2017/0475

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

- and -

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

Wintawari Guruma Aboriginal Corporation RNTBC (WCD2017/001)

(native title party)

- and -

Baracus Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven
Place:	Perth
Date:	29 August 2018
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 Act 1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266
Representative of the native title party:	Mr Matthew Hansen, Wintawari Guruma Aboriginal Corporation RNTBC

Representative of the grantee party: Mr Matthew Clohessy, Emerald Tenement Services

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

REASONS FOR DETERMINATION

Background

1. On 3 March 2017, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E47/3425-I to Baracus Pty Ltd (Baracus). The area of the proposed licence is partially overlapped by the Wintawari Guruma Aboriginal Corporation RNTBC. By including an expedited procedure statement in the public advertisement of the licence, the State asserted that the grant can be made without requiring Baracus or the State to negotiate with the determined native title holders.

2. Following lodgement and acceptance of an objection from the native title holders against the application of the expedited procedure to the grant of the licence, I was appointed by the then President of the National Native Title Tribunal, Raelene Webb QC, to be the Member conducting the inquiry of whether the licence can be granted in such an expedited way.

Should the inquiry proceed or should the matter be dismissed?

1. Parties attempted to reach agreement, however due to the age of the matter, directions were set.  Directions were amended as parties indicated time was needed for the Wintawari Guruma Aboriginal Corporation RNTBC Board approval, and there was some delay due to sorry business within the community.  Ultimately, parties were unable to reach agreement, and a directions hearing was held on 20 July 2018, as the State had request the matter be dismissed due to non-compliance with directions.  The representative for the native title holders did not attend the directions hearing, but advised by email the same day that:

   I advise that I have been instructed that the native title party is not prepared to enter into the RSHA [Regional Standard Heritage Agreement], nor will they be submitting submissions.

   Of course, that only leaves open one path for the matter, which the native title party understands.

2. At the listing hearing, the State confirmed they would apply a condition regarding the RSHA on grant of the licence.  Baracus confirmed they supported the State’s request for the objection to be dismissed.

3. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. Once an objection application is made, it is incumbent on the objector to proceed with the application. This principle has been reiterated many times in Tribunal decisions.

4. 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.

Determination

1. The objection application against exploration licence E47/3425-I is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member
29 August 2018