Colin Hamlett & Ors on Behalf of Wajarri Yamatji v Nucam Resources Pty Ltd and Another

[2019] NNTTA 65

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on Behalf of Wajarri Yamatji v Nucam Resources Pty Ltd and Another [2019] NNTTA 65 (27 August 2019)

Application No: WO2018/0978 WO2018/0979

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Colin Hamlett & Ors on Behalf of Wajarri Yamatji (WCD2004/010)

(native title party)

- and -

Nucam Resources Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Ms Nerida Cooley
Place:	Perth
Date:	27 August 2019

Catchwords:

Native title – future act – proposed grant of amalgamation applications – expedited procedure objection applications – failure to comply with directions – objection applications dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

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

Representative(s) of the grantee party: Mr Vishal Sood

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

REASONS FOR DECISION

Background

1. On 19 September 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 amalgamation application 537141 in relation to exploration licence 51/1653 and amalgamation application 537142 in relation to exploration licence 51/1811 (amalgamation applications) to Nucam Resources Pty Ltd  (grantee party). The s 29 notice included a statement that the State considers the grant of the amalgamation applications are acts attracting the expedited procedure under the NTA (expedited procedure statement).

2. If the expedited procedure applies, then the State may grant each amalgamation application without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of each amalgamation application is located wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 30 November 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (native title party) lodged an objection with the Tribunal against the inclusion of the expedited procedure statement in relation to each amalgamation application.  The native title party’s objections were lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party.  In the covering emails, YMAC stated “Please note that Anthony Dann is the Heritage Service Provider for this area.  Please contact Anthony going forward as YMAC is not involved in the negotiations.”

4. The native title party’s objection applications were lodged 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 each amalgamation application is an act attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in these matters.

Relevant facts

1. On 13 June 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  On the same day, the directions were sent to the native title party by email to Mr Dann as representative for the native title party.

2. The native title party was directed to provide a statement of contentions, documentary evidence and witness statements for the objection applications, verified where possible by affidavit, on or before 25 July 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.

3. On 6 August 2019, the Tribunal wrote to all parties advising that the native title party had failed to provide contentions and evidence by the due date, and that no extension request had been received. Parties were advised that the objections were at risk of dismissal under s 148(b) of the NTA and invited to provide comments by no later than close of business on 13 August 2019. This correspondence was also copied to YMAC.

4. On 7 August 2019 the State wrote to the Tribunal, copying in all parties, formally requesting dismissal under s 148(b) of the NTA due to the native title party’s non-compliance.

5. On 8 August 2019 the grantee party representative, Mr Sood, wrote to the Tribunal, advising that he had again tried telephoning the native title party representative, Mr Dann, that day, but was unable to reach him. In his correspondence Mr Sood also requested dismissal of the objections and stated his understanding that the objections relate to the amalgamation of tenements for which the grantee party already has agreements in place.

6. Further correspondence then followed between Mr Sood and YMAC in relation to whether or not relevant agreements were in fact in place (which YMAC disputed), and whether YMAC could withdraw the objections (for which it said it would require instructions from Mr Dann).

7. However, those issues are not relevant to whether or not the objections should be dismissed and, in that respect, the native title party has not provided any response to the Tribunal's correspondence advising that the objections were at risk of dismissal.

Consideration of dismissal

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. In considering the dismissal of these matters, I have had regard to the principles set out in the Tribunal’s decision in Teelow v Page (at [13]). I am also mindful that the native title party, as the applicant, should be taking steps to progress the objections within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia at page 7).

4. In this case, the native title party has not given any reason for its non-compliance with the Tribunal’s directions, nor sought any extension of time. Further, the native title party has not responded to the Tribunal’s correspondence advising that the objections were at risk of dismissal, despite being given the opportunity to do so.

5. In these circumstances, I am satisfied that the native title party has had sufficient opportunity to comply with my directions, or request an extension of time.  Having regard to all the facts and circumstances, I am satisfied that the objection applications should be dismissed.  Accordingly, it is not necessary for me to determine whether the grant of the amalgamation applications are acts attracting the expedited procedure.

Decision

1. The expedited procedure objection applications in relation to the amalgamation applications set out in paragraph [1] are dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
27 August 2019