Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Gascoyne Resources (WA) Pty Ltd

[2019] NNTTA 86

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Gascoyne Resources (WA) Pty Ltd [2019] NNTTA 86 (18 October 2019)

Application No: WO2019/0425

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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Gascoyne Resources (WA) Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley, Member
Place:	Brisbane
Date:	18 October 2019

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:

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Peter Romeo Gianni and Another [2019] NNTTA 68 (Wajarri Yamatji v Gianni)

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

Representatives(s) of the native title party:

Mr Anthony Dann

Representative(s) of the grantee party: Mr Jim Hawtin, Strategic Tenement Services Pty Ltd

Representatives(s) of the Government party: Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

Background

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 E09/2352 (licence) to Gascoyne Resources (WA) Pty Ltd (grantee party), with a notification day of 8 May 2019.

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

3. Just over half of the area of the proposed licence is situated within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 16 May 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (native title party) lodged an objection with the 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 the covering email, YMAC stated “Anthony Dann is the Heritage Service Provider for this matter.  Please contact Anthony going forward as YMAC is not involved in the negotiation.”

4. The native title party’s objection application was lodged 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 licence is an act attracting the expedited procedure.

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

Relevant facts

1. On 11 June 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  The directions were communicated to the parties by email, including Mr Dann as the representative of the native title party.

2. The native title party was directed to provide its evidence and contentions on or before 30 September 2019.  The native title party did not provide any material by the due date, and made no request for an extension of time to do so.

3. On 3 October 2019, the Tribunal wrote to all parties advising that the objection was at risk of dismissal under s 148(b) of the NTA and parties were invited to provide comments by no later than close of business on 9 October 2019. YMAC was also copied into this correspondence.

4. The Tribunal has not received a response from any of the parties in relation to the correspondence sent on 3 October 2019.

Consideration of dismissal

1. The Tribunal has a broad discretion under s 148(b) of the NTA to 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. Dismissing an application is a matter the Tribunal takes seriously, given the consequences for the native title party.  There are a number of considerations that may be relevant to dismissal of an application (see Teelow v Page at [13]). I am also mindful of the native title party’s recent history of non-compliance with the Tribunal’s directions (see Wajarri Yamatji v Gianni).

3. 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.

4. In the circumstances, I am satisfied that the native title party has had sufficient opportunity to comply with my directions, or request an extension of time.  Having regard to all 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 licence is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection application in relation to exploration licence E09/2352 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
18 October 2019