Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Big Rocks Mining Pty Ltd

[2019] NNTTA 97

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Big Rocks Mining Pty Ltd & Anor [2019] NNTTA 97 (12 November 2019)

Application No: WO2019/0557

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)

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Big Rocks Mining Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	12 November 2019

Catchwords:	Native title – future act – proposed grant of exploration permit – expedited procedure objection application – failure to comply with directions – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss29, 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:

Mr Stephen Compton

Representative of the grantee party: Mr Michael Giles

Representative of the Government party: Ms 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 E51/1916 (permit) to Big Rocks Mining Pty Ltd (grantee party). The notification day was 5 June 2019. The s 29 notice included a statement that the State considers the grant of the permit is an act attracting the expedited procedure under the NTA (expedited procedure Statement).

2. If the expedited procedure applies, then the State may grant the permit without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the proposed permit overlaps the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010) by less than 0.01 per cent. On 5 July 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (native title party) lodged an objection with the National Native Title Tribunal against the inclusion of the expedited procedure statement. The native title party’s objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party. In its covering email, YMAC nominated Mr Stephen Compton as the representative of the native title party in this matter saying: “Please contact Mr Compton going forward as YMAC is not involved in the negotiations”. An email address was provided.  The Tribunal has forwarded all subsequent correspondence to that same email address.

4. I note the area of the proposed permit overlaps the area of the native title determination application made by the Yugunga-Nya People claim group (WC1999/046) by 99.96 per cent. Yugunga-Nya People lodged an objection against the inclusion of the expedited procedure statement and that objection has been dismissed under s148 (b) of the NTA.

5. The native title party’s objection was made within the timeframe required under s 32(3) of the NTA and therefore under s 32(4) of the NTA, the Tribunal is required to determine whether the grant of the permit 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 9 July 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 that same 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 28 October 2019. 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 29 October 2019, the Tribunal wrote to the representatives of the native title party and grantee party, noting the native title party’s non-compliance asking whether the native title party does intend to comply in this matter and if so will they be seeking an extension in relation to Direction 2. No response was received from the representatives for the native title party or grantee party.

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. Accordingly, it is not necessary for me to determine whether the grant of the permit is an act attracting the expedited procedure.

Decision

1. The objection application against E51/1916 is dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
12 November 2019