Colin Hamlett & Ors on behalf of Wajarri Yamatji v Philip Arthur Box

[2019] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji v Philip Arthur Box [2019] NNTTA 17 (2 April 2019)

Application No: WO2019/0115

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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Philip Arthur Box

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Mr JR McNamara, Member

Place:

Brisbane

Date:

2 April 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, 31, 32, 148(b)

Cases:

Teelow v Page [2001] NNTTA 107; 166 FLR 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 Philip Arthur Box

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

REASONS FOR DETERMINATION

1. On 14 November 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 prospecting licence P51/3081 (licence) to Mr Philip Arthur Box (grantee party). The s 29 notice included a statement that the State considers the grant of the licence 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 licence without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the proposed licence is situated wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010). On 25 January 2019, the registered native title claimants 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 nominated Mr Anthony Dann as the representative of the native title party in this matter saying: “Anthony Dann is the Heritage Service Provider for this matter. Please contact Anthony going forward as YMAC is not involved in the negotiations”.  The YMAC email was copied to what appears to be an email address for Mr Dann. The Tribunal has forwarded all subsequent correspondence to that same email address. 

4. The native title party’s complying 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 licence is an act attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purpose of the inquiry in this matter.

Relevant facts

1. On 19 February 2019, the grantee party advised the Tribunal and the State that he would like the matter to proceed to inquiry. On 20 February 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.

2. 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 15 March 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 18 March 2019, the grantee party wrote to the Tribunal and the State, noting the native title party’s non-compliance and requesting the objection be dismissed under s 148(b) of the NTA.

4. On 18 March 2019, the Tribunal wrote to Mr Dann as the representative of the native title party and the State, inviting a response to the grantee party’s request for dismissal by 25 March 2019. The State wrote to the Tribunal on 19 March 2019 supporting the grantee party’s request for dismissal. No response was received from the representative of the native title party.

5. On 26 March 2019 the Tribunal also wrote to YMAC (copying in the representatives of all parties), noting the native title party’s non-compliance with the Tribunal’s directions and advising that, as no response had been received from the representative of the native title party, the grantee party’s dismissal request would be referred to me for consideration.

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 pages 6-7).

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 a number of opportunities 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 to 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 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 objection application against P51/3081 is dismissed under s 148(b) of the NTA.

Mr JR McNamara
Member
2 April 2019