Western Desert Lands Aboriginal Corporation on behalf of its members v Chad Graeme Johnson, Neale Graeme Johnson [2015] NNTTA 53 (17 November 2015)

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

IN THE MATTER of an inquiry into expedited procedure objection applications

Western Desert Lands Aboriginal Corporation (native title party)

The State of Western Australia (Government party)

Chad Graeme Johnson, Neale Graeme Johnson (grantee party)

Catchwords: Native title - future act - proposed grant of exploration licence - expedited procedure objection application - failure to comply with directions - objection application dismissed.

Legislation: Native Title Act 1993 (Cth) ss 29, 148(b)

Cases: Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 ('Teelow v Page')

native title party: Mr Matthew Kinder, Western Desert Lands Aboriginal Corporation

Government party: Ms Bethany Conway, Department of Mines and Petroleum

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

[1] On 1 May 2015, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E45/3446 to Mr Chad Graeme Johnson and Mr Neale Graeme Johnson (Messrs Johnson) without requiring them, or the State, to negotiate with the Western Desert Lands Aboriginal Corporation. The area of the proposed licence is covered by the native title party determinations WCD2002/002 and WCD/2013/002. The determined area overlaps the licence by 100 per cent.

[2] The State has asserted the grant can be made without such negotiations, as they have included an expedited procedure clause in the public advertisement of the licence. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Western Desert Lands Aboriginal Corporation, the State, and Messrs Johnson.

[3] Western Desert Lands Aboriginal Corporation lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence on 26 June 2015. To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

[4] On 15 September 2015, Messrs Johnson advised the Tribunal they wanted this matter to proceed to an inquiry. Member Helen Shurven made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry, to determine whether or not the expedited procedure was attracted to the grant. The Western Desert Lands Aboriginal Corporation were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 27 October 2015.

[5] Neither contentions nor evidence were received from the Western Desert Lands Aboriginal Corporation by 27 October 2015. On 28 October 2015, the State wrote to the Tribunal, the Western Desert Lands Aboriginal Corporation representative and Messrs Johnson requesting the objection be dismissed because the Western Desert Lands Aboriginal Corporation had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

[6] On 28 October 2015, the Tribunal wrote to the Western Desert Lands Aboriginal Corporation and Messrs Johnson, asking them to respond to the State's request to dismiss. Parties were given until 3 November 2015 to respond. No response was received from Messrs Johnson or the Western Desert Lands Aboriginal Corporation.

[7] In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

[8] As at the date of this determination, no response has been received from either the grantees party or the Western Desert Lands Aboriginal Corporation as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non compliance.

[9] In the circumstances, the Western Desert Lands Aboriginal Corporation have been given sufficient opportunity to comply with directions set by Member Shurven, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

[10] The objection application against exploration licence E45/3446 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).