Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Rumble Resources Limited and Another
[2020] NNTTA 5
•23 January 2020
NATIONAL NATIVE TITLE TRIBUNAL
Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Rumble Resources Limited and Another [2020] NNTTA 5 (23 January 2020)
Application No: | WO2019/0387 |
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 -
Rumble Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 23 January 2020 |
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, 148 |
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 Stephen Compton |
| Representative(s) of the grantee party: | Ms Taila Childs, Mining Access Legal |
| Representatives(s) of the Government party: | Mr Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
BACKGROUND
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 E51/1919 (licence) to Rumble Resources Limited (Rumble), with a notification day of 8 May 2019.
The s 29 notice included a statement that the State considers the grant of the licence to be an act attracting the expedited procedure under the NTA (expedited procedure statement).
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 13 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 objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party however, in its covering email, YMAC advised that any future contract should be with the heritage service provider, Mr Anthony Dann.
The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry in this matter.
Relevant Facts
Under the Tribunal’s procedures in place since 1 May 2019, which apply in this matter, directions for inquiry are made, as a matter of course, with effect from the closing day for objections. This process reflects that the Tribunal’s task is to determine whether the expedited procedure applies or whether the parties are required to negotiate in good faith under s 31(1)(b) of the NTA. Parties may choose to negotiate in parallel, but that is not the purpose of the Tribunal’s inquiry. In this case, the parties could have negotiated from at least the time the objection was lodged on 8 May 2019.
Accordingly, on 27 May 2019, following lodgement of the objection, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, the native title party’s material was due to be provided by 30 September 2019.
The native title party did not comply with the Tribunal’s directions and, on 3 October 2019, the Tribunal wrote to the parties to advise that the objection was at risk of dismissal under s 148(b) of the NTA and seek comments. This email was sent to Mr Dann and also to YMAC, which then advised that the native title party’s representative had changed from Mr Dann to Mr Stephen Compton.
On 9 October 2019, Mr Compton wrote to the Tribunal and the parties to provide an explanation for the delay and to seek an extension of time. Both Mr Compton and Rumble’s representative also advised that the parties were in communication regarding entry into a heritage agreement. The extension request was supported by the other parties and I then extended the native title party’s time for compliance to 30 October 2019.
The native title party again failed to comply and the Tribunal sent another email to parties regarding the risk of dismissal on 1 November 2019. In response, the State formally requested dismissal, but Mr Compton sought a further extension to allow the native title party and grantee party to finalise the agreement being negotiated. Mr Compton also indicated that Rumble supported a further extension.
I then held a case management conference on 21 November 2019, to hear further from parties in relation to the requested extension of time. All parties appeared on that occasion and I was given an update on the status of the proposed agreement between the native title party and Rumble. As noted above, the purpose of the inquiry process is to decide whether the expedited procedure applies to the proposed tenement, not to allow time for negotiation. However, having regard to the change in native title party representative and the reasons for the delay previously advised by Mr Compton, I adjourned the matter for a further two weeks to allow the parties to finalise the proposed agreement.
When I next heard the matter on 5 December 2019, Mr Compton was unavailable to appear, and despite being requested to do so by the Tribunal, did not provide any written update for the hearing. Rumble’s representative indicated that it understood the agreement was being reviewed by the native title party’s legal representative at YMAC.
Given the delay which had already ensued, the apparent lack of substantive progress and failure of the native title party to appear or provide an update, I reinstated directions, requiring compliance by the native title party by 19 December 2019. The amended directions were communicated to all parties by email on 6 December 2019, including Mr Compton as the representative for the native title party.
Once again, the native title party failed to comply and on this occasion has not provided any reason, nor sought any extension of time.
On 23 December 2019, the Tribunal wrote to all parties for the third time 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 7 January 2020. YMAC was also copied into this correspondence.
On 7 January 2020, Rumble’s representative wrote to the Tribunal advising of its support for the dismissal. No response was received from the native title party or the State.
Consideration of dismissal
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 reasonable time to proceed with the application or to comply with a direction by the Tribunal.
In considering the dismissal, I have regard to the principles set out in the Tribunal’s decision in Teelow v Page (at [13]) and I am mindful of the native title party’s history of non-compliance with the Tribunal’s directions (see Wajarri Yamatji v Gianni).
In this case, the native title party has been afforded ample opportunity to comply with the Tribunal’s directions and granted two extensions of time. The native title party has not given any reason for its most recent non-compliance and has failed to provide any response to the Tribunal’s correspondence.
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
The expedited procedure objection application in relation to exploration licence E51/1919 is dismissed under s 148(b) of the NTA.
Ms Nerida Cooley
Member
23 January 2020
0
0
0