Colin Hamlett & Ors on behalf of Wajarri Yamatji v Camel Driver Pty Ltd

[2019] NNTTA 41

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Camel Driver Pty Ltd [2019] NNTTA 41 (20 June 2019)

Application No: WO2018/0614 & WO2018/0615

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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Camel Driver Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr JR McNamara, Member
Place:	Brisbane
Date:	20 June 2019

Catchwords:	Native title – future act – proposed grant of prospecting permit – expedited procedure objection application – failure to comply with directions – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss29, 31, 32, 148(b)

Cases:

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

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

Representatives(s) of the native title party:

Ms Raina Savage

Representative(s) of the grantee party: Mr Dennis Hawtin

Representatives(s) of the Government party: Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 2 May 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 permits  P20/2333& P20/2334 (permits) to Camel Driver Pty Ltd (grantee party). The s 29 notice included a statement that the State considers the grant of the permits 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 permits without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the proposed permits are situated wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010). On 23 August 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (native title party) lodged an objection with the National Native Title Tribunal against the inclusion of the expedited procedure statement. The native title party’s objections were lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party. In its covering email, YMAC nominated Ms Raina Savage as the representative of the native title party in these matters saying: “Can all future correspondence please be sent to Raina Savage”. A mobile number and email address was provided.  The Tribunal has forwarded all subsequent correspondence to that same email address.

4. The native title party’s objections were 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 permits is an act attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purposed of the inquiry in this matter.

Relevant facts

1. On 28 August 2018 and 2 October 2018 the Tribunal notified parties of the objections and provided information about the inquiry process. The Tribunal also notified parties of the status conferences which were convened on 12 October 2018, 16 January 2019, 6 February 2019 and 13 March 2019. At the status conference on 16 January 2019, the native title party representative advised that a draft agreement had been sent to the grantee party. The grantee party asked if this could be resent as they had not received it. At the 13 March 2019 status conference the grantee party advised they were yet to receive a copy of the agreement. The native title party advised that they had re-sent the agreement but received a ‘bounce back’ email. At the 13 March 2019 status conference the native title party confirmed that they had sent the agreement some time ago but had not received a response, the grantee advised they had received it a week prior to this status conference as initially the agreement went to the incorrect place.

2. On 1 April 2019 parties were notified that I would convene a directions hearing on 11 April 2019. At the directions hearing the grantee party advised they would not be accepting the alternative heritage agreement and would only be signing the regional standard heritage agreement. Despite the non-attendance by a representative for the native title party directions were made and sent to all parties on 11 April 2019.

3. 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 6 June 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.

4. On 7 June 2019, the State wrote to the Tribunal and the representatives of the native title party and grantee party, noting the native title party’s non-compliance and requesting the objections be dismissed under s 148(b) of the NTA.

5. On 11 June 2019, the Tribunal wrote to the representatives of the native title party and the grantee party, inviting a response to the State’s request for dismissal by 14 June 2019. No response was received from the representatives for the native title party or grantee party.

Consideration of grantee party’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 Resources NL 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, the native title party has had sufficient opportunity to comply with directions set by the Tribunal or make a request for an extension of time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the permits is an act attracting the expedited procedure.

Decision

1. The objection applications against P20/2333 & P20/2334 are dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
20 June 2019