Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Firefly Resources Limited and the State of Western Australia

[2021] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Firefly Resources Limited and the State of Western Australia  [2021] NNTTA 30 (25 June 2021)

Application No: WO2021/0412 WO2021/0413

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

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

(native title party)

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Firefly Resources Limited

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	25 June 2021

Catchwords:

Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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] NNTTA 333 (Stock v Giralia)

Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107 (Teelow v Page)

Representatives of the native title party:

Ms Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation
Ms Patricia Edwards, Heritage Link

Representative of the grantee party: Mr Eamon Cornelius, Western Tenement Services

Representative of the Government party: Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 13 January 2021, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licences E59/2456 and E59/2458 (proposed licences) to Firefly Resources Limited (grantee party). The s 29 notice for the proposed licences included a statement that the State considers the grant of the proposed licences 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 proposed licences without entering into the right to negotiate procedure under s 31 of the NTA.

3. The area of the proposed licences is located entirely within the area of the registered native title determination application made by the Wajarri Yamatji claim group (WC2004/010). On 10 February 2021, the registered native title claimant for the Wajarri Yamatji claim group (native title party) lodged objections with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement in relation to the proposed licences.

4. The objection applications were lodged within the timeframe outlined in 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 proposed licences is an act attracting the expedited procedure. The President of the Tribunal appointed me to constitute the Tribunal for the purposes of the inquiry.

Relevant Facts

1. On 2 March 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the enquiry. Under those directions, the native title party was directed to provide the Tribunal its contentions and evidence by 17 June 2021. As part of the Tribunal’s case management process for expedited procedure matters, I also conducted case management conferences on 7 April 2021 and 12 May 2021.

2. On 8 June 2021, the grantee party wrote to the Tribunal advising that they wished to proceed with the expedited procedure inquiry. On 14 June 2021, the Tribunal wrote to parties acknowledging the grantee party’s advice and noting the upcoming native title party compliance date.

3. The native title party did not provide any contentions or evidence on or before 17 June 2021 and did not request an extension of time to do so. On 18 June 2021, the Tribunal wrote to all parties noting that the compliance date for native title party contentions and evidence had passed and requested the native title party advise whether it intended to comply with the directions. In response the native title party advised that they would not be providing evidence. As such on 18 June 2021, the Tribunal advised the parties that the objections were 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 23 June 2021.

4. On 22 June 2021, the grantee party confirmed receipt of the Tribunal’s advice and stated that the grantee party supported the dismissal of the objections. No response was received from the native title party.

Consideration of 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 objection application or to comply with a direction of the Tribunal.

2. While the Tribunal has 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 directions 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 Stock v Giralia at page 7).

5. In this case, the native title party has not provided any reason for its non-compliance with the directions of the Tribunal nor sought any additional extension of time.

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

Determination

1. The expedited procedure objection applications in relation to exploration licences E59/2456 and E59/2458 are dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
25 June 2021