Colin Hamlett & Ors on behalf of Wajarri Yamatji v Alexander Lyndsay Johnston and Another

[2019] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Alexander Lyndsay Johnston and Another [2019] NNTTA 38 (13 June 2019)

Application No: WO2019/0030

IN THE MATTER of the Native Title Act 1993 (Cth)

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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)

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Alexander Lyndsay Johnston

(Grantee Party)

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State of Western Australia
(Government Party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley, Member
Place:	Brisbane
Date:	13 June 2019
Catchwords:	Native title – future act – proposed grant of prospecting 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) David Stock v Giralia Resources NL, [2000] NNTTA 333 (David Stock v Giralia)

Representative of the native title party: Mr Anthony Dann

Representative of the grantee party: Mr Alexander Lyndsay Johnston

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

REASONS FOR DECISION

Background

1. On 17 October 2018, the State of Western Australia (State) gave notice, under s 29 of the Native Title Act 1993 (Cth) (NTA), of its intention to grant prospecting licence P51/3080 (licence) to Alexander Lyndsay Johnston (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 11 January 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (native title party) lodged an objection with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement. The native title party’s objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party. In its covering email, YMAC advised that all future contact with the native title party should be with the Heritage Service Provider, Mr Anthony Dann.

4. The native title party’s objection was made 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.

5. 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 2 April 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry in this matter.  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 10 May 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 13 May 2019, the State wrote to the Tribunal and the other parties, noting the native title party’s non-compliance and requesting that the objection be dismissed under s 148(b) of the NTA.

4. Also on 13 May 2019, the Tribunal invited the representative of the native title party and the grantee party, to respond to the State’s request for dismissal by no later than close of business 20 May 2019. No response was received from either the representative for the native title party or the grantee party.

5. On 30 May 2019, the Tribunal also informed YMAC of the dismissal request, noting that Mr Dann had not responded.

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 taken lightly.

3. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with a direction are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.

4. I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia at page 7).

5. In this case, 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.  Further, the native title party has not responded to the State’s dismissal request, despite being given an opportunity to do so, and being made aware of the potential consequences.

6. In the circumstances, I am satisfied that the native title party has had sufficient opportunity to comply with my directions, or request an extension of time.  Having regard to all of 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

1. The objection application against prospecting licence P51/3080 is dismissed under

   
   

   s 148(b) of the NTA.

Ms Nerida Cooley
Member
13 June 2019