Yinhawangka Gobawarrah Registered Native Title Claimants & Zenith Minerals Limited

[2019] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Yinhawangka Gobawarrah Registered Native Title Claimants & Zenith Minerals Limited [2019] NNTTA 20 (9 April 2019)

Application No:    WO2018/0091

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

- and -

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

Yinhawangka Gobawarrah Registered Native Title Claimants (WC2016/004)

(native title party)

- and -

Zenith Minerals Limited

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	9 April 2019

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, 237, 148(b)

Native Title Amendment Bill 1997 [No. 2]

Cases:

Teelow v Page [2001] NNTTA 107; 166 FLR 266

David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Mr Roy Tommy, Ms Julie Walker and Terra Rosa Consulting

Representative of the grantee party: Mr Martin Wiedermann, Tenement Adviser/Principal,
MKII Consulting

Representatives of the Government party: Ms Bethany Conway and Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 24 January 2018, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E08/2966 to Zenith Minerals Limited. The area of the proposed licence is overlapped by the registered native title claim of Yinhawangka Gobawarrah (WC2016/004). By including the expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without negotiation between Yinhawangka Gobawarrah, the State and Zenith Minerals Limited because the grant is not likely to cause interference of the type outlined in s 237 of the Act.

2. On 12 February 2018, Yinhawangka Gobawarrah lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. To answer the question of whether the licence can be granted in such an expedited way, I have been appointed to conduct the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. Yinhawangka Gobawarrah and Zenith Minerals Limited indicated their desire to reach agreement as a means to dispense with the objection to the expedited procedure.  On 21 November 2018, due to the lack of progress, I made directions 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 licence. These directions were sent to all parties the same day, and later amended to allow further time for parties to dispense with the objection.  

2. Due to a lack of progress, parties were called to a directions hearing on 4 February 2019.  Yinhawangka Gobawarrah were not available when attempt was made to contact them.  The Zenith Minerals Limited representative reaffirmed the desire to reach agreement as a way of dispensing with the objection application, however, had been unable to make contact with Yinhawangka Gobawarrah.  I amended directions the same day, and all parties were emailed a copy of the updated directions that day.

3. Neither contentions nor evidence was received from Yinhawangka Gobawarrah by their due date of 15 March 2019. On 19 March 2019, the Tribunal received a request from the State to dismiss the objection under s148(b) of the Act, on the basis that Yinhawangka Gobawarrah had failed to provide contentions and evidence by their due date, and no reason for non-compliance, or request to extend this date, had been received. This request was copied to all parties.

4. The Tribunal wrote to all parties on 19 March 2019, asking them to provide any response to the dismissal request received from the State by no later than the close of business 26 March 2019, for my consideration.

5. On 19 March 2019, Zenith Minerals Limited wrote to the Tribunal, copying in all parties, that:

   The Grantee party is happy for the objection WO2018/0091 to be dismissed and the application proceed to grant, noting the grantee’s ongoing obligations under the Aboriginal Heritage Act 1972.

   On 26 March 2019, Terra Rosa Consulting, on behalf of Yinhawangka Gobawarrah, requested an extension of the period by which to provide a response. On 27 March 2019 the Tribunal wrote to Terra Rosa Consulting and all parties, copying in the original Yinhawangka Gobawarrah representatives, giving Yinhawangka Gobawarrah until 5 April 2019 to respond to as why this matter should not be dismissed. No further response was received from Yinhawangka Gobawarrah.

6. Yinhawangka Gobawarrah, and all parties to this inquiry, have been on notice since the first communication from the Tribunal in this matter, that:  

   If and once directions are set, the matter will proceed to a listing hearing, if required, and a determination. Parties will be expected to comply promptly with the directions to ensure a full and efficient inquiry. Parties can continue to negotiate during the inquiry process and request assistance from the Tribunal if it is needed.

7. A Statement of Expectations is also provided to parties at the outset, which sets down the expectations of the Tribunal for all parties, including that:

   Non-compliance with Directions could lead to dismissal of the objection application.

8. 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 Resources NL, Deputy President Franklyn QC stated (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

9. 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 NNTT 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 NNTT directions. 
   27.10c    …These limited provisions will assist the NNTT to more efficiently and appropriately manage its processes…

Decision

1. The objection application against exploration licence E08/2966 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member