Wangkatja Tjungula Aboriginal Corporation RNTBC v Geoffrey John Dowsett

[2024] NNTTA 57

NATIONAL NATIVE TITLE TRIBUNAL

Wangkatja Tjungula Aboriginal Corporation RNTBC v Geoffrey John Dowsett & Anor [2024] NNTTA 57 (5 August 2024)

Application No: WO2024/0052

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

- and -

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

Wangkatja Tjungula Aboriginal Corporation RNTBC (WCD2023/002)

(native title party)

- and -

Geoffrey John Dowsett

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	5 August 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:

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTA 333 (Stock v Giralia)

Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representatives of the native title party:

Verna Vos and Quinton Tucker, Wangkatja Tjungula Aboriginal Corporation

Representative of the grantee party: Geoffrey John Dowsett

Representatives of the Government party: Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

1. On 12 January 2024, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant special prospecting licence P 31/2177-S to Geoffrey John Dowsett. 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 Native Title Act (expedited procedure statement).

2. 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.

3. The proposed licence is located approximately 19 km north easterly of Edjudina and covers an area of approximately 0.1 km².  Further, the proposed licence sits wholly within the area of the Nyalpa Pirniku determination, held in trust by the Wangkatja Tjungula Aboriginal Corporation (WTAC) as the registered native title body corporate.

4. On 23 January 2024, the legal representative for WTAC 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

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 15 May 2024, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry in which WTAC were directed to provide their contentions and evidence by 3 July 2024. On the date of compliance, the Tribunal did not receive any contentions or evidence from WTAC.

3. It should be noted that the Tribunal was advised that the representative’s for WTAC would be changed during the course of May 2024.  Following confirmation of this change, a copy of the directions was provided to the new representatives on 4 June 2024.

4. On 16 July 2024, the Tribunal emailed all parties, noting that WTAC had failed to comply 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 24 July 2024 to provide a response. No response was received from WTAC at this time.

5. On 31 July 2024, the Tribunal wrote to all parties and confirmed that WTAC had not provided a response and the matter would be considered for dismissal.

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 P 31/2177-S is dismissed pursuant to s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
5 August 2024