Colin Hamlett & Ors on behalf of Wajarri Yamatji v Gelignite Resources Pty Ltd

[2019] NNTTA 37

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Gelignite Resources Pty Ltd [2019] NNTTA 37 (12 June 2019)

Application No: WO2018/0608; WO2018/0609; WO2018/0610

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

- and -

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)

- and -

Gelignite Resources Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Member Helen Shurven
Place:	Perth
Date:	12 June 2019

Catchwords:

Native Title – future act – proposed grant of prospecting licences – expedited procedure objection application – failure to comply with directions – objection applications dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 237, 148

Native Title Amendment Bill 1997 [No. 2]

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia)

Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representatives(s) of the native title party:

Mr Anthony Dann
Heritage Service Provider

Representative(s) of the grantee party: Mr Brett Anderson
Anderson’s Tenement Management

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

BACKGROUND

1. On 2 May 2018, the State Government of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant prospecting licence’s P51/3025, P51/3026 and P51/3027 to Gelignite Resources Pty Ltd (Gelignite Resources). In the notice, the State asserted the proposed grants attracted the expedited procedure. As outlined in s 237 of the Act, the expedited procedure applies where the grant of a licence is not likely to:

   ·interfere directly with community or social activities carried on by members of native title claims or determined areas;

   ·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or

   ·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

2. The registered native title claim of Wajarri Yamatji #1 (WC2004/010) overlaps 100 per cent of tenements P51/3025, P51/3026 and P51/3027. Yamatji Marlpa Aboriginal Corporation (YMAC) lodged objections against the assertion of the expedited procedure, on behalf of the Wajarri Yamatji #1. YMAC indicated that future contact with Wajarri Yamatji #1 should be directed to Anthony Dann ‘the heritage service provider’. YMAC also indicated that it had ‘no further involvement’.

Should the inquiry proceed or should the matters be dismissed?

1. When the Tribunal originally communicated to all parties, including Mr Dann, indicating the objections to the expedited procedure had been accepted, part of that communication outlined that:

   If and once directions are set, the matter will proceed to a listing hearing, if required, and a determination. Parties will be expected to comply promptly with the directions to ensure a full and efficient inquiry.

2. On 29 March 2019, 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 of P51/3025, P51/3026 and P51/3027. The email sending the directions to all parties, including Mr Dann, 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…

3. The State provided their initial compliance within the due date, and copied their materials to Mr Dann and the Gelignite Resources representative.

4. Wajarri Yamatji #1 were due to provide their contentions and evidence on or before 10 May 2019. No materials were provided by Mr Dann or Wajarri Yamatji #1, and on the 13 May 2019, the State wrote to the Tribunal, copying in all parties including Mr Dann, seeking a dismissal of the objection application pursuant to s 148(b) of the Act.

5. On 13 May 2019, the Tribunal notified all parties, including Mr Dann and YMAC, as follows:

   The Tribunal has received a request from the government party to dismiss the abovementioned objections under s 148(b) of the Native Title Act 1993 (Cth) on the basis that the native title party has failed to provide contentions and evidence by their due date of 10 May 2019, and no request to extend this date has been received.
   If parties wish to make comment on this request, please do so by no later than COB Tuesday, 21 May 2019. This request and any responses will then be put to Member Shurven for her consideration and parties will be advised of the outcome in due course.

6. On 15 May 2019, a representative from YMAC wrote to Mr Dann, copying in the Tribunal, noting the State’s request for the matter’s to be dismissed and reiterating the closing date to make submissions was Tuesday, 21 May 2019.

7. There has also been no response from Mr Dann, or on behalf of Wajarri Yamatji #1. I am satisfied that Wajarri Yamatji #1, through Mr Dann, has had reasonable time in which to comply with Tribunal directions.  No response to the dismissal request was received from Gelignite Resources.

8. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I am 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, Deputy President Franklyn QC stated (at pages 6-7):

   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.

9. 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 Tribunal 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 Tribunal directions. 

   27.10c    …These limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…

10. As at the date of this determination, no response has been received from Wajarri Yamatji #1 or Mr Dann as to why the objections should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance. In the circumstances, Wajarri Yamatji #1 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 objections should be dismissed.

Decision

1. The objection applications against P51/3025, P51/3026 and P51/3027 are dismissed pursuant to s 148(b) of the Act.

Helen Shurven
Member
12 June 2019