Wangkatja Tjungula Aboriginal Corporation RNTBC v Frederick Charles Saunders

[2024] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Wangkatja Tjungula Aboriginal Corporation RNTBC v Frederick Charles Saunders and Another [2024] NNTTA 69 (11 September 2024)

Application No: WO2024/0161

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

Wangkatja Tjungula Aboriginal Corporation RNTBC (WCD2023/002)

(native title party)

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Frederick Charles Saunders

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	11 September 2024

Catchwords:	Native title – future act – proposed grant of special prospecting licence – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application 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:	Verna Vos and Quinton Tucker, Wangkatja Tjungula Aboriginal Corporation

Representative(s) of the grantee party: Eamon Cornelius, Western Tenement Services

Representatives(s) of the Government party: Andrea Wyles, David Crabtree & Paola O’Neill, Department of Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL    

Background

1. On 23 February 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 E 39/2392 to Mr Frederick Charles Saunders (grantee party). The s 29 notice included a statement that the State considers the grant of the proposed licences as acts attracting the expedited procedure under the Native Title Act (expedited procedure statement).

2. If the expedited procedure applies, the State may grant the proposed licences without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.

3. The proposed licence E 39/2392 is located approximately 64 km south west of Laverton and covers an area of approximately 6 km².  The proposed licence sits wholly within the Nyalpa Pirniku native title determination area, held in trust by the Wangkatja Tjungula Aboriginal Corporation (WTAC) as the registered native title body corporate.

4. On 11 March 2024, WTAC’s legal representative lodged objections to the State’s assertion that the expedited procedure applies to the grant of the licences with the National Native Title Tribunal. The objection applications were lodged within the timeframe outlined in s 32(3) of the Native Title Act and as such, under s 32(4), the Tribunal is required to determine whether the grant of the proposed licences are acts 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. At the first preliminary conference held on 1 May 2024, I noted that the legal representatives of WTAC would be ceasing to act as of 24 May 2024 and that a handover of material to new representatives was to occur.  Notwithstanding this, the grantee party stated their preference for the matter to proceed to inquiry and a Directions Hearing was scheduled for 26 June 2024.  In mid-May, WTACs new representatives were confirmed to the Tribunal.

3. During the Directions Hearing on 26 June 2024, I made directions requiring all parties to provide submissions to the inquiry in which WTAC were directed to provide contentions and evidence by 14 August 2024.  On the date of compliance, the Tribunal did not receive any contentions or evidence from WTAC.

1. On 21 August 2024, the Tribunal emailed all parties, including a new representative acting on behalf of WTAC, noting that WTAC had failed to comply with directions and that the objection was now at risk of dismissal per s 148(b) of the Native Title Act. Parties were given until close of business 28 August 2024 to provide a response. No response was received from WTAC.

Consideration of Dismissal

1. 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.

2. 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.

3. On this occasion, it is my view that WTAC has been afforded sufficient opportunity to progress this objection application but have failed to do so within a reasonable time. WTAC have failed to comply with directions set by the Tribunal, have not provided reasoning for their non-compliance and no request for an extension has been made. 

4. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to exploration licence E 39/2392 is dismissed under s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
11 September 2024