Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Peter Romeo Gianni and Another

[2019] NNTTA 68

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on Behalf of Wajarri Yamatji #1 v Peter Romeo Gianni and Another [2019] NNTTA 68 (5 September 2019)

Application No: WO2019/0162

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 -

Peter Romeo Gianni

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	5 September 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:	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 Peter Romeo Gianni

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

REASONS FOR DECISION

Background

1. On 30 January 2019, 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 licence E51/1910 (licence) to Peter Romeo Gianni (grantee party). 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. 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. The area of the proposed licence is located wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 15 February 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. 

4. The objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party.  In the covering email, YMAC stated “This tenement sits wholly within the area where Anthony Dann is the Heritage Service Provider. Please contact Anthony going forward as YMAC is not involved in the negotiations.”

5. 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. 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 5 July 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  The directions were communicated to the native title party by email to Mr Dann as representative for the native title party.

2. 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 16 August 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.

3. On 22 August 2019 the Tribunal wrote to all parties advising that the matter was at risk of dismissal under s 148(b) and invited parties to make any comments by no later than close of business 28 August 2019. That correspondence was copied to YMAC. Also on 22 August 2019, the State responded to the Tribunal requesting dismissal under s 148(b) of the NTA, due to the native title party’s non-compliance. In its response the State noted that “there have been approximately 20 objections dismissed for non-compliance by the Native Title Party in the past five months.”

4. The native title party has not provided any response to the correspondence from the Tribunal or the State regarding dismissal.

Consideration of State’s dismissal request

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 which is taken lightly. 

3. In considering the dismissal of this matter, I have had regard to the principles set out in the Tribunal’s decision in Teelow v Page (at [13]). I am also very aware of the native title party’s recent history of non-compliance with directions. The Tribunal’s records show that 21 objections made by the native title party have been dismissed for non-compliance since 1 March 2019.

4. In this case, as with the other Wajarri Yamatji #1 dismissals recently decided by me, 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.

5. In the circumstances, I am satisfied that the native title party has had sufficient opportunity to comply with my directions, or request an extension.  For the reasons given, 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 E51/1910 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member