Colin Hamlett & Ors on behalf of Wajarri Yamatji and Red Field Pty Ltd

[2019] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji and Red Field Pty Ltd [2019] NNTTA 11 (19 March 2019)

Application No: WO2018/0970

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 (WC2004/010)

(native title party)

- and –

Red Field Pty Ltd
(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms H Shurven, Member

Place:

Perth

Date:

19 March 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, 148(b)

Native Title Amendment Bill 1997 [No. 2]

Cases:

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

David Stock v Giralia Resources NL, [2000] NNTTA 333

Representative of the native title party:

Mr Anthony Dann 

Representative of the grantee party: Mr Peter Gianni, Director, Red Field Pty Ltd

Representatives of the Government party: Ms Bethany Conway and Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 22 August 2018, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E09/2320 to Red Field Pty Ltd (Red Field). The area of the proposed licence overlaps entirely with the Wajarri Yamatji #1 claim (Wajarri Yamatji) (WC2004/010).

2. The State included an expedited procedure statement in the public advertisement of the licence, and so in effect asserted the grant can be made without negotiation between Wajarri Yamatji, the State and Red Field.

3. Wajarri Yamatji lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. To answer the question of whether the licence can be granted in such an expedited way, I was appointed as the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 21 January 2019, Red Field requested the matter proceed through the inquiry process, noting, among other things, that they had not received a draft agreement from Wajarri Yamatji.  The Tribunal made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant. Wajarri Yamatji was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 6 March 2019. Neither contentions nor evidence were received from Wajarri Yamatji.

2. On 8 March 2019, the State wrote to the Tribunal, copying in all parties, and requested the objection application be dismissed as Wajarri Yamatji had not complied with the Tribunal’s directions and no extension request had been received. The Tribunal wrote to all parties requesting Wajarri Yamatji and Red Field provide a response by close of business 15 March 2019 and to outline any reasons why the objection should not be dismissed.

3. No response was received from any party following the request for dismissal. It is not acceptable that there be no communication from an objector’s representative to such requests, nor is it acceptable that the objection is not progressed in a timely and effective manner.

4. Wajarri Yamatji, and all parties to this inquiry, have been on notice since the first communication from the Tribunal in this matter, that:  

   If and once directions are set, the matter will proceed to a listing hearing, if required, and a determination. Parties will be expected to comply promptly with the directions to ensure a full and efficient inquiry. Parties can continue to negotiate during the inquiry process and request assistance from the Tribunal if it is needed.

5. A Statement of Expectations is also provided to parties at the outset, which sets down the expectations of the Tribunal for all parties, including that:

   Non-compliance with Directions could lead to dismissal of the objection application.

6. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. Once an objection application is made, it is incumbent on the objector to proceed with the application, and to communicate with the Tribunal and all parties about the application. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia Resources NL, Deputy President Franklyn QC stated (at page 6):

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection

7. Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):

   27.10b    Replacement item 40 inserts new section 148 which states that the NNTT has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with NNTT directions. 
   27.10c    …These limited provisions will assist the NNTT to more efficiently and appropriately manage its processes…

Decision

1. The objection application against exploration licence E09/2320 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
19 March 2019