Colin Hamlett & Ors on behalf of Wajarri Yamatji v Diversified Asset Holdings Pty Ltd

[2019] NNTTA 40

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Diversified Asset Holdings Pty Ltd [2019] NNTTA 40 (19 June 2019)

Application No: WO2018/0636

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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Diversified Asset Holdings 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:	Perth
Date:	19 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:

Mr Anthony Dann

Representative(s) of the grantee party: Mr Bob Kozyrski

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

REASONS FOR DETERMINATION

1. On 16 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 exploration license E09/2258 (permit) to Diversified Asset Holdings Pty Ltd (grantee party). The s 29 notice included a statement that the State considers the grant of the permit 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 permit without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the proposed permit is situated wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010). On 30 August 2018, 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 objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party. In its covering email, YMAC said: “All further correspondence are to be directed to the heritage service provider, Mr Anthony Dann”. A mobile phone number and email address for Mr Dann was provided.  Subsequent correspondence concerning this matter was sent to the email address provided.

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 permit 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 10 September 2018 and 16 October 2018 the Tribunal notified parties of the objection and provided information about the inquiry process.  The Tribunal also notified parties of status conferences which were convened on 26 October 2018, 9 November 2018, 23 November 2018, 5 December 2018, 30 January 2019, 27 February 2019, 13 March 2019, and 3 April 2019. No representative of the native title party attended the status conferences. At the 27 February 2019 status conference the grantee party advised that a signed agreement had been sent to Mr Dann.  The grantee party informed the Tribunal at all subsequent conferences that no response to the agreement had been received from Mr Dann.

2. The parties were also notified that I would convene a directions hearing on 11 April 2019. At the directions hearing the grantee party confirmed the advice from the status conferences that no response had been received from Mr Dann regarding the agreement. No representative from the native title party attended this conference.  Consequently, on 11 April 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.

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 objection be dismissed under s 148(b) of the NTA.

5. On 12 June 2019, the Tribunal wrote to the representatives of the native title party and the grantee party and to YMAC, inviting a response to the State’s request for dismissal by 17 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 grantee party’s dismissal request, despite being given the 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 application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the permit is an act attracting the expedited procedure.

Decision

1. The objection application against E09/2258 is dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
19 June 2019