Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Big Bell Gold Operations Pty Ltd & Another

[2020] NNTTA 6

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Big Bell Gold Operations Pty Ltd & Another [2020] NNTTA 6 (23 January 2020)

Application No: WO2019/0694

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

- and -

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

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 (WC2004/010)

(native title party)

- and -

Big Bell Gold Operations Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	23 January 2020

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, 31, 32, 148(b)

Cases:

Teelow v Page [2001] NNTTA 107; 166 FRL 266

David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Stephen Compton

Representative of the grantee party: April French, Austwide Mining Title Management Pty Ltd

Representative of the Government party: Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licence E51/1928 (licence) to Big Bell Gold Operations Pty Ltd (grantee party). The notification day was 14 August 2019. The s 29 notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure under the NTA (expedited procedure Statement).

2. The area of the proposed licence overlaps the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010) by approximately 4.90 per cent and the Yugunga-Nya People (WC1999/046) 95.10 per cent.

3. On 15 August 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (native title party) lodged an objection with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement. The Yugunga-Nya People also lodged an objection against the inclusion of the expedited procedure statement and that objection is proceeding to inquiry.

4. The native title party’s objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on their behalf. In its covering email, YMAC nominated Mr Anthony Dann as the representative of the native title party in this matter saying: “Please contact Mr Dann going forward as YMAC is not involved in the negotiations”. On 18 September 2019, YMAC wrote to the Tribunal and the State advising of a change in Heritage Service Provider in relation to this matter from Mr Dann to Mr Stephen Compton. An email address for Mr Compton was provided. The Tribunal has forwarded all subsequent correspondence to that email address.

5. The native title party’s objection was made within the timeframe required under s 32(3) of the NTA and, subject to the power of the Tribunal to dismiss an application (ss 147 – 149) the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure.

6. The President of the Tribunal has directed me to constitute the Tribunal for the purposed of the inquiry in this matter.

Relevant facts

1. On 22 August 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. The directions were sent to all parties the following day. The native title party was directed to provide a statement of contentions, documentary evidence and witness statements for the objection application, verified where possible by affidavit, on or before 13 January 2020. The native title party did not provide any contentions or evidence by the due date, and has not made any request for an extension of time to do so.

2. On 14 January 2020, the Tribunal wrote to all parties advising that the native title party had failed to comply with directions made and the objection was now at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business 21 January 2020. No response was received from the native title party, the grantee party or the State.

Consideration of the dismissal

1. Under s 148(b) of the NTA 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 by the Tribunal.

2. While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences for the native title party, and is not an action taken lightly.

3. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with a direction are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.

4. I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).

5. In this case the native title party has not given any reason for its non-compliance with the directions of the Tribunal, nor sought any extension of time. Further, the native title party has not responded to the Tribunal’s advice despite being given an opportunity to do so.

6. In the circumstances, the native title party has had sufficient opportunity to comply with directions set by the Tribunal or make a request for an extension of time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.

Decision

1. The expedited procedure objection application brought by the registered native title claimant for the Wajarri Yamatji #1 claim against E51/1928 is dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
23 January 2020