Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Minex (West) Pty Ltd

[2019] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Minex (West) Pty Ltd [2019] NNTTA 31 (29 May 2019)

Application No: WO2018/1040

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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Minex (West) Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Helen Shurven
Place:	Perth
Date:	29 May 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
Representative of the native title party:	Mr Anthony Dann Heritage Service Provider

Representative of the grantee party: Mr Jacob Wotherspoon
All Mining Legal Pty Ltd

Representative of the Government party: Mr Matthew Smith, Ms Bethany Conway
Department of Mines, Industry Regulation and Safety

BACKGROUND

1. On 3 October 2018, the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant exploration licence E52/3644 (the proposed licence) to Minex (West) Pty Ltd. In the notice, the State asserted the proposed grant attracted the expedited procedure. Section 31 of the Act confers upon native title parties the right to make submissions concerning such a grant and to negotiate in good faith with the State and the proposed grantee. However, where the State asserts the expedited procedure, native title parties have no such rights, unless they successfully object pursuant to s 32 of the Act.

2. The registered native title claim of Wajarri Yamatji #1 (WC2004/010) overlaps 82.91 per cent of E52/3644. On 13 December 2018, pursuant to s 32(3) of the Act, Yamatji Marlpa Aboriginal Corporation (YMAC) lodged an objection to the assertion of the expedited procedure, on behalf of Wajarri Yamatji #1. YMAC indicated that future contact with Wajarri Yamatji #1 should be with Anthony Dann, ‘the Heritage Service Provider for this matter’. YMAC also indicated that it was not involved in ‘the negotiations’, presumably involving Wajarri Yamatji #1, the State and Minex (West) Pty Ltd.

3. On 8 April 2019, the Tribunal communicated directions to all parties for conduct of the inquiry, which included the direction that on or before 15 May 2019, Wajarri Yamatji #1 provide a statement of contentions and supporting documents. The email to all parties, including to Mr Dann, included the following statement:  

   Parties are asked to note:

   ·if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application; and

   …

4. Wajarri Yamatji #1has not complied with that direction. On 16 May 2019, the State wrote to the Tribunal, copying in all parties including Mr Dann, seeking dismissal of the objection application pursuant to s 148(b) of the Act. Section 148 provides:

   The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   (a) the Tribunal is satisfied that it is not entitled to deal with the application; or

   (b) the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

5. On 20 May 2019, the Tribunal notified all parties, including Mr Dann, as follows:

   Our records indicate that the native title party failed to comply on this matter on 15 May 2018. As such, on 16 May the State requested this matter be dismissed under s 148(b)… Please provide any comments by close of business 23 May 2019. The request will then be put to the Member for consideration.

6. On 20 May 2019, the Minex (West) Pty Ltd representative emailed the Tribunal and all parties, including Mr Dann, supporting the State’s request for dismissal. There has been no response by Mr Dann, or on behalf of Wajarri Yamatji #1. I am satisfied that Wajarri Yamatji #1, through Mr Dann, has had a reasonable time in which to comply with Tribunal directions.

7. While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences for the native title party. It is not a step which should be taken lightly. Had Wajarri Yamatji #1 explained the delay as best it could, and sought an extension of time in which to comply with the directions, it may have been appropriate to grant such extension, taking into account the circumstances, and the views of the other parties. However, Wajarri Yamatji #1, through Mr Dann, has not responded to the Tribunal’s correspondence concerning the lack of compliance with the inquiry directions. 

8. Having regard to all of the facts and circumstances of this matter, I am satisfied the objection application should be dismissed. Accordingly, it is not necessary that I determine whether the proposed grant would be an act attracting the expedited procedure.

Decision

1. The objection application is dismissed pursuant to s 148(b) of the Act.

Helen Shurven
Member
29 May 2019