Colin Hamlett & Ors on Behalf of Wajarri Yamatji v Revolution Mining Pty Ltd and Another

[2019] NNTTA 56

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on Behalf of Wajarri Yamatji v Revolution Mining Pty Ltd and Another [2019] NNTTA 56 (31 July 2019)

Application No: WO2018/0926, WO2018/0927, WO2018/0928

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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Revolution Mining Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	31 July 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:

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: Ms Linda Skender, Deblin Tenement Management Services

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

REASONS FOR DECISION

Background

1. [1]   On 8 August 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 exploration licences E09/2317, E09/2321 and E09/2322 (licences) to Revolution Mining Pty Ltd  (grantee party). The s 29 notice included a statement that the State considers the grant of the licences are acts attracting the expedited procedure under the NTA (expedited procedure statement).

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

3. [3]   The area of each of the proposed licences is located wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 22 November 2018, 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.  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 these matters.  Please contact Anthony going forward with any questions as YMAC is not involved in the negotiations.”

4. [4] 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.

5. [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. [6]   On 21 May 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  The directions were communicated to the native title party by email to Mr Dann as representative for the native title party.

2. [7]   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 2 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. [8] On 8 July 2019, the State wrote to the Tribunal requesting dismissal under s 148(b) of the NTA, due to the native title party’s non-compliance.

4. [9]   The Tribunal then invited the representatives of the native title party and the grantee party to respond to the State’s dismissal request by no later than close of business 15 July 2019.  That correspondence was copied to YMAC, which re-sent the email to 
Mr Dann, copied to the Tribunal.  The Tribunal has not received any response from the native title party in relation to the dismissal request.

Consideration of State’s dismissal request

1. [10] 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. [11] 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. [12] 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 objection within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia at page 7).

4. [13] 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 provided a response to the State’s dismissal request, despite being given the opportunity to do so.

1. [14] 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 licences are acts attracting the expedited procedure.

Decision

1. [15] The expedited procedure objection application in relation to exploration licences E09/2317, E09/2321 and E09/2322 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
31 July 2019