Colin Hamlett & Ors on behalf of Wajarri Yamatji v Black Canyon Pty Ltd

[2018] NNTTA 71

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Black Canyon Pty Ltd [2018] NNTTA 71 (21 November 2018)

Application No: WO2018/0174

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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Black Canyon Pty Ltd

(grantee party)

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State of Western Australia
(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms H Shurven

Place:

Perth

Date:

21 November 2018

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: Ms Janet Procak, All Mining Legal Pty Ltd

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

REASONS FOR DETERMINATION

Background

1. On 24 January 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 E09/2273 to Black Canyon Pty Ltd. The area of the proposed licence is overlapped by the Wajarri Yamatji #1 claim group’s native title claim (WC2004/010) by 90.54 per cent. By including an expedited procedure statement in the public advertisement of the licence, the State asserted that the grant can be made without requiring the grantee, Black Canyon Pty Ltd, or the State to negotiate with the Wajarri Yamatji #1 claim group.

2. On 23 March 2018, the Wajarri Yamatji #1 claim group 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 to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 21 September 2018, I 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. The Wajarri Yamatji #1 claim group were directed to provide a statement of contentions, documentary evidence and witness statements for the objection application, verified where possible by affidavit, on or before 2 November 2018.

2. The State complied with directions on 5 October 2018, and sent their information to all parties.  The Wajarri Yamatji #1 claim group did not provide contentions or evidence by 2 November 2018, or request further time to provide any documents.  On 8 November 2018, the State wrote to the Tribunal and all parties, requesting the objection be dismissed on the basis that the Wajarri Yamatji #1 claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 8 November 2018, the Tribunal wrote to the representatives of the Wajarri Yamatji #1 claim group and Black Canyon Pty Ltd, and gave them until 15 November 2018 to respond to the State’s request to dismiss the objection. Ms Procak, on behalf of Black Canyon Pty Ltd, wrote to the tribunal on 9 November 2018 advising the grantee party supports the State’s position.  No response was received from the Wajarri Yamatji #1 claim group.

4. In considering this dismissal, 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. 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

5. 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…

6. As at the date of this determination, no response has been received from the Wajarri Yamatji #1 claim group as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance. In the circumstances, the Wajarri Yamatji #1 claim group have 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 licences can be granted in an expedited way because I have concluded the objection should be dismissed.

Determination

1. The objection application against exploration licence E09/2273 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member
21 November 2018