Ngadju Native Title Aboriginal Corporation RNTBC v Brett Charles Pascoe

[2023] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Ngadju Native Title Aboriginal Corporation RNTBC v Brett Charles Pascoe & Another [2023] NNTTA 42 (5 December 2023)

Application No: WO2023/0595

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

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

Ngadju Native Title Aboriginal Corporation RNTBC (WCD2017/002)

(native title party)

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Brett Charles Pascoe

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	5 December 2023

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – expedited procedure objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 32, 148
Cases:	David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (‘Stock v Giralia’)
Representative of the native title party:	Katarina Bevk, Ngadju Native Title Aboriginal Corporation

Representative of the grantee party: Brett Charles Pascoe

Representatives of the Government party: Paola O’Neill, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. Brett Charles Pascoe has applied for the grant of an exploration licence in the Goldfields region of Western Australia. The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth).

2. Ngadju Native Title Aboriginal Corporation RNTBC, which holds native title in trust for the Ngadju People in relation to part of the licence area, objects to the application of the expedited procedure. The Tribunal is therefore required to determine whether the expedited procedure applies: s 32(4) Native Title Act.

3. Ngadju has not complied with the Tribunal’s directions and, for the reasons that follow, I have dismissed Ngadju’s objection application.

What steps has Ngadju taken to comply with the Tribunal’s directions?

1. On 19 July 2023, I made directions requiring all parties to provide contentions and evidence for the conduct of the Tribunal’s inquiry into whether the expedited procedure applies to the grant of the licence. In accordance with those directions, Ngadju’s contentions and evidence were due to be provided on or before 23 October 2023.

2. There is nothing to indicate that the parties took any steps to resolve the objection by agreement and Mr Pascoe advised in early August that he wished to proceed to inquiry.

3. Ngadju did not comply by 23 October 2023, nor did it seek an extension of time. On 30 October 2023, the Tribunal wrote to parties advising the matter was at risk of dismissal and inviting comments by 6 November 2023. To date, no comments have been received from any of the parties, nor did Ngadju seek any extension of time for compliance.

Should the objection application be dismissed?

1. 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 application or to comply with a direction of the Tribunal: s 148(b) Native Title Act. As the Tribunal has repeatedly observed, it is for the native title party to take steps to progress its objection application within a reasonable time if it wishes to pursue it: Stock v Giralia (at page 7).

2. Ngadju has been aware of its compliance date since the objection was notified on 30 July 2023 and has been on notice that this matter would be proceeding to inquiry since 9 August 2023. Ngadju has had ample time to comply with directions or seek an extension of time but has not done so. Ngadju has also been given notice that its application was at risk of dismissal but has not communicated further with the Tribunal.

3. Having regard to all the facts and circumstances, I am satisfied that Ngadju’s objection application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection application in relation to E 15/1892 is dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley  
Member
5 December 2023