Colin Hamlett & Ors on behalf of Wajarri Yamatji & Arrow (Malinda) Pty Ltd

[2019] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji & Arrow (Malinda) Pty Ltd [2019] NNTTA 19 (2 April 2019)

Application No:    WO2018/0179

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 -

Arrow (Malinda) Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	2 April 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 Act1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)
Representative of the native title party:	Mr Anthony Dann

Representative of the grantee party: Ms Claire McGowan

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 7 March 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 E09/2283 to Arrow (Malinda) Pty Ltd. The area of the proposed licence is overlapped by the Wajarri Yamatji native title claim (WC2004/010). By including the expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without negotiation between Wajarri Yamatji, the State and Arrow (Malinda) Pty Ltd.

2. On 23 March 2018, the Yamatji Marlpa Aboriginal Corporation lodged an objection, on behalf of Wajarri Yamatji, 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 have been appointed to conduct the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 30 January 2019 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 of the licence. These directions were sent to all parties the same day.  The State complied with their directions on 13 February 2019, and copied in the Tribunal and all parties to their documents and information. Neither contentions nor evidence was received from Wajarri Yamatji by their due date of 13 March 2019.

2. On 15 March 2019 the Tribunal received a request from the State to dismiss the objection under s148(b) of the Native Title Act 1993 (Cth), as Wajarri Yamatji had failed to provide contentions and evidence by their due date, and no reason for non-compliance, or request to extend this date, had been received. This request was copied to all parties.

3. The Tribunal wrote to all parties on 18 March 2019 asking them to provide any response to the dismissal request received from the State by no later than the close of business 25 March 2019, for my consideration. No response was received from Wajarri Yamatji or Arrow (Malinda) Pty Ltd.

4. In considering the dismissal request, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.  In the circumstances, Wajarri Yamatji has been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E09/2283 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member