Colin Hamlett & Ors on behalf of Wajarri Yamatji v Peter Romeo Gianni and Another

[2019] NNTTA 83

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Peter Romeo Gianni and Another [2019] NNTTA 83 (17 October 2019)

Application No: WO2019/0424

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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Peter Romeo Gianni

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley, Member
Place:	Brisbane
Date:	17 October 2019

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:

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

Cases:

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Peter Romeo Gianni [2019] NNTTA 68 (Wajarri Yamatji v Gianni)

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 Peter Romeo Gianni

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

REASONS FOR DECISION

Background

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licence E09/2354 (licence) to Mr Peter Romeo Gianni (grantee party), with a notification day of 8 May 2019.

2. The s 29 notice included a statement that the State considers the grant of the licence an act attracting the expedited procedure under the NTA (expedited procedure statement).

3. If the expedited procedure applies, then the State may grant the licence without compliance with the negotiation procedure under s 31 of the NTA.

4. The area of the proposed licence is located wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 16 May 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. 

5. The native title party’s objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party.  In the covering email, YMAC stated “Anthony Dann is the Heritage Service Provider for this matter.  Please contact Anthony going forward as YMAC is not involved in the negotiation.”

6. The native title party’s objection application was 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 licence is an act attracting the expedited procedure.

7. 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 7 June 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  The directions were sent to all parties by email including to Mr Dann, as representative for the native title party.

2. The native title party was directed to provide the evidence upon which it intended to rely and a statement of contentions on or before 30 September 2019.  The native title party did not provide any evidence or contentions by the due date, and has not made any request for an extension of time to do so.

3. On 3 October 2019, the Tribunal wrote to all parties advising that the objection was at risk of dismissal under s 148(b) of the NTA and invited parties to provide comments by no later than close of business on 9 October 2019. YMAC was also copied into this correspondence.

4. The Tribunal has not received a response from any of the parties in relation to the correspondence sent on 3 October 2019.

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.  The relevant considerations are set out in the Tribunal’s decision in Teelow v Page (at [13]). I am also conscious, as I noted in Wajarri Yamatji v Gianni, that the native title party’s recent history of non-compliance resulting in dismissal is extensive. 

3. In this case, the Tribunal has not received any correspondence from the native title party to seek an extension of time or respond to the Tribunal’s correspondence in relation to dismissal.

4. In the 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 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 licence is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection application in relation to exploration licence E09/2354 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
17 October 2019