Dennis Forrest & Ors on behalf of the Kakarra Part A native title claimants v Vincent McCahon and Another

[2023] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Dennis Forrest & Ors on behalf of the Kakarra Part A native title claimants v Vincent McCahon and Another [2023] NNTTA 14 (5 May 2023)

Application No: WO2022/1202

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

- and -

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

Dennis Forrest & Ors on behalf of the Kakarra Part A native title claimants (WC2020/005)

(native title party)

- and -

Vincent McCahon

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	5 May 2023

Catchwords:

Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with direction – objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

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

Representatives(s) of the native title party:

Rhianne Gerrard, Native Title Services Goldfields

Representative(s) of the grantee party: Vincent McCahon

Representatives(s) of the Government party: Andrea Wyles, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 21 September 2022, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence P25/2740 (proposed licence) to Vincent McCahon (grantee). The s 29 notice included a statement that the State considers the grant of the proposed licence is an act attracting the expedited procedure under the NTA (expedited procedure statement).

2. If the expedited procedure applies, then the State may grant the proposed licence without entering into the right to negotiate procedure under s 31 of the NTA.

3. On 4 October 2022, the Kakarra Part A Native Title Claim Group (WC2020/005, WAD297/2020) (Kakarra) made an expedited procedure objection application to the National Native Title Tribunal (Tribunal).

4. The area of the proposed licence is located entirely within the Kakarra Part A claim area. Kakarra has status to make the objection application because, at the time the s 29 notice was given, they were a registered native title claimant over the proposed licence area and therefore a native title party (see ss 29(2)(b)(i) and 32(3) of the NTA).

5. Kakarra lodged the objection application within the timeframe outlined in s 32(3) of the NTA and therefore, under s 32(4) of the NTA, the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.

Relevant Facts

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.

2. On 11 October 2022, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, Kakarra was directed to provide its contentions and evidence by 27 February 2023.

3. On 26 October 2022, I convened a preliminary conference which representatives for all parties attended. The grantee party representative advised they had received Kakarra’s preferred agreement and raised a number of issues which the Kakarra representative advised they were willing to discuss.

4. On 7 December 2022, I convened a status conference which representatives for all parties attended. During that conference the parties advised they had been in contact concerning the scope of the proposed agreement and the grantee party representative expressed concern about Kakarra’s preferred agreement being too onerous.

5. On 18 January 2023, I convened a directions hearing which representatives for all parties attended. The grantee party advised that he had formed the view the agreement was too onerous and confirmed he wished to proceed to inquiry. The parties discussed arranging a meeting between Kakarra traditional owners and the grantee party, and in order to facilitate this I provided a 3 week extension to compliance dates. Under those directions, Kakarra was directed to provide its contentions and evidence by 20 March 2023.

6. On 23 March 2023, a representative for Kakarra requested a further 4 week extension to allow negotiations to continue, noting it was seeking further instructions on a question posed by the grantee party and that there were few outstanding issues. In response the grantee party noted he had made contact with Kakarra on 8 March 2023 and wished for this matter to proceed as quickly as possible. The State advised it did not oppose the extension. Having considered the correspondence, I granted the requested extension but noted that, absent exceptional circumstance, further extensions were unlikely and strongly encouraged Kakarra to engage. Under those directions, Kakarra was directed to provide its contentions and evidence by 17 April 2023.

7. On 19 April 2023, the Tribunal wrote to all parties noting that Kakarra had failed to comply with the directions made and the objection was now at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business on 26 April 2023. A representative for Kakarra wrote to the Tribunal requesting a further one week extension to 24 April 2023 in order to allow time for a single outstanding issue to be resolved and agreement to be finalised.

8. There followed a chain of correspondence between the parties. In summary, the grantee party advised that there had been no correspondence from Kakarra between 8 March 2023 and 17 April 2023 and that they expected the dismissal of the objection. Kakarra advised they still hoped to reach agreement, provided some explanation for the delay and confirmed that they remained ‘keen’ to resolve the matter by agreement. The State advised they were happy to support the requested one week extension. During the course of this exchange the period of Kakarra’s requested one week extension elapsed.

9. On 27 April 2023, parties were advised that, having considered the correspondence, I had not decided to grant a further extension of time.

Consideration of dismissal

1. Under s 148(b) of the NTA, the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the native title party fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal.

2. While the Tribunal has broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.

3. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.

4. I am also mindful that Kakarra, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).

5. In relation to this extension I note that the period initially requested by Kakarra has now passed and there has been no apparent further progress towards agreement. I also note the comments of the grantee party concerning the apparent lack of engagement from Kakarra, especially in light of my comments following Kakarra’s March extension request.

6. Having regard to all of the facts and circumstances of this matter, Kakarra have been provided had sufficient opportunity to comply with directions set by the Tribunal. I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to the grant of prospecting licence P25/2740 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
5 May 2023