Ngadju Native Title Aboriginal Corporation RNTBC v Stuart Alexander McEwan

NATIONAL NATIVE TITLE TRIBUNAL

Ngadju Native Title Aboriginal Corporation RNTBC v Stuart Alexander McEwan & Anor [2024] NNTTA 92 (10 December 2024)

Application No:

WO2024/0539

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection application

Ngadju Native Title Aboriginal Corporation RNTBC (WCD2014/004)

(native title party)

- and -

Stuart Alexander McEwan

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS AN OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	10 December 2024

Catchwords:	Native title – future act – proposed grant of prospecting licence – expedited procedure objection applications – failure to comply with directions – s 148(b) – objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)
Cases:	Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)
Representative of the native title party:	Katarina Bevk, Ngadju Native Title Aboriginal Corporation

Representative of the grantee parties:

Stuart Alexander McEwan

Representatives of the Government party:

Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

On 19 April 2024, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence P 15/6846-S to the grantee party Stuart Alexander McEwan. The s 29 notice included a statement that the State considers the grant of the proposed licence as an act attracting the expedited procedure under the Native Title Act (expedited procedure statement).
If the expedited procedure applies, the State may grant the proposed licence without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.
The proposed licence P 15/6846-S is located approximately 48 km in a southerly direction from Kambalda and covers an area of approximately 0.1 km². The proposed licence sits wholly within the registered native title claim area of the Ngadju People (WCD2014/004 and WCD2017/002).
On 26 June 2024, the legal representative for Ngadju Native Title Aboriginal Corporation RNTBC lodged an objection with the National Native Title Tribunal in response to the State's assertion that the expedited procedure applies to the grant of the licence. The objection application was lodged within the timeframe outlined in s 32(3) of the Native Title Act and therefore, under s 32(4), the Tribunal is required to determine whether the grant of the proposed licence is an act attracting the expedited procedure.

Relevant Facts

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.
Following a directions hearing on 2 October 2024, I made directions requiring parties to provide materials to the inquiry, with Ngadju directed to provide contentions and evidence by 20 November 2024. On the date of Ngadju’s compliance, no materials were received.
On 27 November 2024, the Tribunal emailed all parties, noting that Ngadju had failed to comply, and that the objection application was now at risk of dismissal under s 148(b) of the Native Title Act. Parties were given until close of business 4 December 2024 to provide a response. No response from Ngadju was been received.

Consideration of Dismissal

Pursuant to s 148(b) of the Native Title Act, 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. 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.
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 ([13]). I have applied those principles in my consideration of this matter.
On this occasion, it is my view that Ngadju has been afforded sufficient opportunity to progress this objection application but have failed to do so within a reasonable time. Ngadju have failed to comply with directions set by the Tribunal, have submitted no materials into the inquiry and have not provided reasoning for their non-compliance.
Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.

Determination

The expedited procedure objection application in relation to P 15/6846-S is dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
10 December 2024

The case of Ngadju Native Title Aboriginal Corporation RNTBC v Stuart Alexander McEwan and Anor involves an objection to the grant of a prospecting licence by the State of Western Australia. The native title party, Ngadju Native Title Aboriginal Corporation RNTBC, lodged an objection to the proposed grant of exploration licence P 15/6846-S to Stuart Alexander McEwan, contending that the grant falls under the expedited procedure outlined in the Native Title Act 1993 (Cth). The State of Western Australia, as the granting authority, and Stuart Alexander McEwan, as the grantee, were the other parties involved. The dispute centred on whether the grant of the prospecting licence qualified for the expedited procedure, which would allow the State to bypass the right to negotiate process under s 31 of the Native Title Act.

The legal issues before the Tribunal included whether the proposed grant of the prospecting licence was an act attracting the expedited procedure and whether the native title party had complied with the directions issued by the Tribunal regarding the objection application. The primary focus was on whether the failure of the native title party to comply with the directions provided sufficient grounds to dismiss the objection application under s 148(b) of the Native Title Act. The Tribunal had to balance the principles of procedural fairness with the need to ensure that the objection process was not unduly prolonged.

The Tribunal, constituted by Mr Glen Kelly, concluded that the objection application should be dismissed. The decision hinged on the native title party's failure to comply with the directions set by the Tribunal, particularly the submission of required materials and any reasoning for the non-compliance. The Tribunal noted that the native title party had been given multiple opportunities to comply with the directions but had failed to do so within a reasonable time. This failure to proceed with the objection application justified the dismissal under s 148(b) of the Native Title Act. The principles governing such dismissals were applied, drawing on the precedent set in Teelow v Page.

The final orders of the Tribunal were that the objection application in relation to the grant of prospecting licence P 15/6846-S was dismissed pursuant to s 148(b) of the Native Title Act. This determination allowed the State of Western Australia to proceed with the grant of the prospecting licence without the need to engage in the right to negotiate process. The dismissal of the objection application was based on the failure of the native title party to comply with the directions issued by the Tribunal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established