Colin Hamlett & Ors on behalf of Wajarri Yamatji v Ernest Edward Campbell

[2019] NNTTA 24

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Ernest Edward Campbell [2019] NNTTA 24 (17 May 2019)

Application No: WO2019/0114

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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Ernest Edward Campbell

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	The Hon John Dowsett AM, QC President
Place:	Brisbane
Date:	17 May 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) ss29, 30, 31, 32, 75‑77, 148(b), 233, 237
Representative of the native title party:	Mr Anthony Dann

Representative of the grantee party: Mr Ernest Campbell

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

BACKGROUND

1. On 14 November 2018, the State of Western Australia (the “State”) gave notice (the “notice”) to the applicant, under s 29 of the Native Title Act 1993 (Cth) (the “Act”), of its intention to grant prospecting licence P51/3048-S (the “proposed grant”) to Ernest Edward Campbell (the “proposed grantee”). In the notice, the State asserted that the proposed grant attracted the expedited procedure. Section 31 confers upon native title parties the right to make submissions concerning such a grant and to negotiate in good faith with the State and the proposed grantee. However, where the State so asserts, native title parties have no such rights, unless they successfully object pursuant to s 32.

2. Colin Hamlett and others comprise the applicant (the “applicant”) for a native title determination over an area (the “claim area”) which includes the area of the proposed grant. There has been a determination that native title exists over part of the claim area (the “determination area”). Particulars of the determination have not yet been entered in the National Native Title Register. The application remains on the Register of Native Title Claims with respect to both the determination area and the balance of the claim area. In any event the applicant is a native title party for the purposes of ss 29, 30 and 32.

3. Clearly, the proposed grant would be a future act as defined in s 233 of the Act. A future act will attract the expedited procedure if it satisfies the requirements of s 237 which provides:

   A future act is an act attracting the expedited procedure if:

   (a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

4. On 25 January 2019, pursuant to s 32(3), Yamatji Marlpa Aboriginal Corporation (“YMAC”) lodged an objection on behalf of the applicant. Although the objection gave the applicant’s address as being at YMAC’s office, YMAC indicated that future contact with the applicant should be with Anthony Dann, “the Heritage Service Provider for this matter” (“Mr Dann”). YMAC also indicated that it was not involved in “the negotiations”, presumably involving the applicant, the State and the proposed grantee.

5. On 20 March 2019, I directed that on or before 23 April 2019, the applicant provide a statement of contentions and supporting documents.  On that day, the directions were communicated to the applicant by email to Mr Dann.  The email included the following statement: 

   Parties are asked to note:

   ·if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application; and

   …

6. The applicant has not complied with that direction. On 30 April 2019 the State sought dismissal of the objection application pursuant to s 148(b) of the Act. Section 148 provides:

   The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

   (a) the Tribunal is satisfied that it is not entitled to deal with the application; or

   (b) the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

7. Section 32 refers to an “objection” rather than an “application”. However ss 75‑77 regulate the making of such an objection, referring to it as an “application”. It follows that s 148(b) applies for present purposes.

8. On 1 May 2019, the Tribunal notified the proposed grantee and Mr Dann as follows:

   The Tribunal has received a request from the State to dismiss this objection under s148(b) of the Native Title Act 1993 (Cth) as the native title party has failed to provide contentions and evidence by their due date of 23 April 2019, and no request to extend this date has been received.

   Could parties please provide any responses to this request by no later than COB Wednesday, 8 May 2019.  This request and any responses will then be put to President Dowsett for his consideration and parties will be advised of the outcome in due course.

9. There has been no response by, or on behalf of the applicant.  I am satisfied that it has had a reasonable time in which to comply with my directions.

10. While the Tribunal has a broad discretion to dismiss an objection application, doing so has serious consequences for the native title party.  It is not a step which should be taken lightly.  Had the applicant explained the delay as best it could, and sought an extension of time in which to comply with my directions, it may well have been appropriate to grant such extension.  However the applicant has simply failed to respond to the Tribunal’s correspondence concerning its default.  Having regard to all of the facts and circumstances of this matter I am satisfied that the application should be dismissed. Accordingly, it is not necessary that I determine whether the proposed grant would be an act attracting the expedited procedure.

Decision

1. The objection application is dismissed pursuant to s 148(b) of the Act.

The Hon John Dowsett AM, QC
President
17 May 2019