Wirrawandi Aboriginal Corporation RNTBC v Karratha Gold Pty Ltd & Grant's Hill Gold Pty Ltd
[2019] NNTTA 44
•27 June 2019
NATIONAL NATIVE TITLE TRIBUNAL
Wirrawandi Aboriginal Corporation RNTBC v Karratha Gold Pty Ltd & Grant’s Hill Gold Pty Ltd [2019] NNTTA 44 (27 June 2019)
Application No: | WO2018/0127, WO2018/0529, WO2018/0530, WO2018/0531, WO2018/0532 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wirrawandi Aboriginal Corporation RNTBC (WCD2018/006)
(native title party)
- and -
Karratha Gold Pty Ltd & Grant’s Hill Gold Pty Ltd
(grantee party’s)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Member Helen Shurven |
Place: | Perth |
Date: | 27 June 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 148 Native Title Amendment Bill 1997 [No. 2] |
Cases: | David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia) Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) |
| Representatives(s) of the native title party: | Ms Shirley Feng Corser & Corser Lawyers |
| Representative(s) of the grantee party: | Jacob Wotherspoon All Mining Legal Pty Ltd |
| Representatives(s) of the Government party: | Ms Bethany Conway and Mr Michael McMahon Department of Mines, Industry Regulation and Safety |
BACKGROUND
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant exploration licence E47/3772 to Karratha Gold Pty Ltd, on 1 November 2017. On 21 March 2018, the State also gave notice under s 29 of the Act, of its intention to grant exploration licences E47/3659, E47/3660, E47/3700 and E47/3701 to Grant’s Hill Gold Pty Ltd. In each notice, the State asserted the proposed grant attracted the expedited procedure. In summary, s 237 of the Act outlines that the expedited procedure applies where the grant of a licence is not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The Applicants who hold native title rights and interests in the licence areas lodged an objection with the National Native Title Tribunal against the assertion of the expedited procedure for each of these proposed licences.
I made directions on 11 March 2019 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 of the proposed licences. These directions were sent to all parties, including the objector’s legal representative, and in that communication, parties were asked to note that:
…if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application…
The objector requested an extension of compliance directions on 1 May 2019. The extension request was based on: the legal representative being delayed in receiving the State’s initial compliance material due to some internal communication issues; ‘difficulties obtaining instructions from relevant common law holders who have direct knowledge of the significant sites as they are based in Karratha and have limited email and telephone access’; ‘the native title party is presently liaising with their anthropologist regarding the various registered sites on and around the affected tenements’; the number of licences involved in this inquiry; and the hope that negotiations with the grantee parties would be fruitful. The extension was not contested by the grantee party or the State.
The objector then requested a three week extension on 5 June 2019, to allow time ‘to prepare and finalise a heritage agreement’ for the grantee’s consideration ‘based on previous negotiations’. The request also outlined reasons for the delay. It was foreshadowed that a draft heritage agreement would be sent by the objector’s legal representative to the grantee parties’ representative on or by 7 June 2019. The grantee opposed the extension and on 10 June 2019, the Tribunal wrote to all parties to request clarification as to whether or not the draft heritage agreement had been sent on or by 7 June 2019.
On the morning of 12 June 2019, the grantee’s representative confirmed no draft agreement had yet been received from the objector’s legal representative and the grantee’s were concerned at prejudice to the grantee parties from any further delay on the part of the objector. The same afternoon, the objector’s legal representative confirmed the draft agreement had now been sent to the grantee parties’ representative.
The objector’s compliance date was amended to 17 June 2019 to allow a brief period for parties to communicate on the draft agreement. The objector did not comply with that direction and no further request for extension was made.
On 18 June 2019, the State wrote to the Tribunal, copying in all parties, seeking a dismissal of the objection applications pursuant to s 148(b) of the Act. Section 148(b) provides:
The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:
…
(b)the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.
On 18 June 2019, the Tribunal notified all parties, for each of the proposed licences, as follows:
The Tribunal has received a request from the government party to dismiss the abovementioned objection under s 148(b) of the Native Title Act 1993 (Cth) on the basis that the native title party has failed to provide contentions and evidence by their due date of 17 June 2019, and no request to extend this date has been received.
If parties wish to make comment on this request, please do so by no later than COB Tuesday, 25 June 2019. This request and any responses will then be put to the Member for consideration and parties will be advised of the outcome in due course.
On 22 June 2019, the Karratha Gold Pty Ltd and Grant’s Hill Gold Pty Ltd representative emailed the Tribunal and all parties, supporting the State’s request for dismissal. There has been no response from the objector’s legal representative. I am satisfied the objector, through their legal representative, have had a reasonable time in which to comply with Tribunal directions.
In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I am 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, and to communicate with the Tribunal and all parties about the application. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia, the Tribunal outlined (at page 6):
It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.
Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):
27.10b Replacement item 40 inserts new section 148 which states that the Tribunal has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with Tribunal directions.
27.10c …These limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…
As at the date of this determination, no response has been received from the objector or their representative as to why the objections should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance. In the circumstances, the objector has been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licences can be granted in an expedited way because I have concluded the objections should be dismissed.
Decision
The objection applications against E47/3659, E47/3660, E47/3700, E47/3701 and E47/3772 are dismissed pursuant to s 148(b) of the Act.
Helen Shurven
Member
27 June 2019
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