Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Black Raven Mining Pty Ltd
[2019] NNTTA 124
•19 December 2019
NATIONAL NATIVE TITLE TRIBUNAL
Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Black Raven Mining Pty Ltd [2019] NNTTA 124 (19 December 2019)
Application Nos: | WO2019/0111 & WO2019/0125 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Colin Hamlett & Others on behalf of Wajarri Yamatji #1 (WC2004/010)
(native title party)
- and -
Black Raven Mining Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Dismissal date: | 27 September 2019 |
Date of reasons: | 19 December 2019 |
Catchwords: | Native title – future act – proposed grant of prospecting licence – proposed grant of exploration licence – expedited procedure objection applications – failure to comply with directions – springing order – dismissing expedited procedure objection applications in event of non-compliance – objection applications dismissed. |
Legislation: | Native Title Act 1993 (Cth) ss 29,148 |
Cases: | Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People; Gordon Lansen on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People; Les Hogan on behalf of the Garawa and Gurdanji People/Northern Territory/Ashton Mining Ltd; North Mining Ltd, [2002] NNTTA 48 (15 April 2002) (“Dixon v Northern Territory”); Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders [2006] NNTTA 76 (15 June 2006) (“Velickovic v Western Australia”) Colin Hamlett & Ors on Behalf of Wajarri Yamatji #1 v Peter Romeo Gianni and Another [2019] NNTTA 68 (5 September 2019) (“Wajarri Yamatji v Gianni”) |
| Representatives(s) of the native title party: | Mr Anthony Dann |
| Representative(s) of the grantee party: | Mr Jacob Loveland, All Mining Legal |
| Representatives(s) of the Government party: | Mr Matthew Smith & Ms Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
Introduction
The expedited procedure objection applications the subject of these proceedings were dismissed by operation of a “springing” or “guillotine” order on 27 September 2019.
While the decision has taken effect, it is appropriate to briefly set out the reasons for my decision to make a springing order in the circumstances of these matters.
Background
The State of Western Australia (State) gave notice in accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), of its intention to grant prospecting licence P51/3082 and exploration licence E51/1906 (licences) to Black Raven Mining Pty Ltd (grantee party). The notification days for the s 29 notices were 14 November 2018 and 12 December 2018, respectively.
Each notice included a statement that the State considered that the licences attracted the expedited procedure under the NTA. On 25 January 2019 and 31 January 2019, the registered native title claimant for the Wajarri Yamatji #1 native title determination application (native title party) lodged expedited procedure objection applications against the licences. The objection applications were lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party however, in each case, YMAC advised that Mr Anthony Dann should be contacted going forward.
Reasons
In response to the Tribunal’s notification of the objection applications, the grantee party indicated that it wished to reach agreement with the native title party. However, at a status conference held by the Tribunal on 7 August 2019 the grantee party advised that it had not had any contact with the native title party representative, Mr Dann. At that conference, the State requested that directions be set for the conduct of the Tribunal’s inquiry and also asked that the native title party’s compliance should occur first and be subject to a “springing order”. The State confirmed its request in writing that same day as follows:
During the conference, the State requested that dates be programmed for Inquiry.
The reason dates were requested is due to the repeated update from the Grantee Party representative: that they had still not received a draft agreement to review, nor had any contact from the Native Title Party representative since the objection was lodged in January 2019. The Native Title Party has not attended either of the recent conferences set by the NNTT and has not been available by phone or replied to any emails.
It was also requested, that in setting directions, the Member direct the Native Title Party to comply first at Direction (1) and further requested that the Member attach a ‘Springing Order’ to that direction.
…
We understand this is an [un]usual request and that the Tribunal does not make directions such as this lightly. There are however circumstances where such orders are appropriate and it is open to the Tribunal to make such orders.
We contend that the Tribunal now has before it (outlined below), a lengthy pattern of non-attendance and non-compliance with directions by this Native Title Party, across a vast number of future act objection matters in the past several months and that such orders, as requested above, are appropriate when setting directions in this matter.
The State then set out a list of 19 dismissal decisions made in relation to objections by the native title party since 1 March 2019, with another two pending at that time. I note that I have since considered the native title party’s history of non-compliance in a number of matters including Wajarri Yamatji v Gianni.
On 15 August 2019 I convened a case management conference to hear from parties on the State’s application. I requested that both Mr Dann and YMAC appear at this conference. Mr Dann failed to appear. Ms Sharon Gillon-Grey appeared for YMAC and advised that, as YMAC holds limited instructions in relation to the lodgement of objections, she was unable to assist further. During the case management conference I indicated that I did not propose to alter the usual order of directions to require the native title party to comply first and the State did not press its request in that regard.
On 16 August 2019 the Tribunal wrote to all parties, including Mr Dann and YMAC, attaching the proposed draft directions and the State’s request, and inviting submissions on the request. Parties were advised that any springing order would likely be worded as follows:
If the native title party fails to comply with direction 2 on or before 26 September 2019, the expedited procedure objection applications in these matters shall stand dismissed by the Tribunal under s 148(b) of the Native Title Act 1993 (Cth) with effect from 27 September 2019.
On 19 August 2019 the grantee party wrote to all parties advising that it supported the making of the springing order. No submissions were received from the native title party or State in response to the Tribunal’s correspondence sent 16 August 2019.
The Tribunal has made springing orders in the past, including in cases where there has been a pattern of non-compliance from the native title party, see: Dixon v Northern Territory; Velickovic v Western Australia. In Dixon v Northern Territory (at [24]) Member Sosso stated the principle underlying a “springing”, “guillotine” or “preemptory” order “…is that Tribunal directions must be complied with, and a party who persistently or deliberately and without proper excuse fails to comply with them, must be called to account for that action or course of conduct.”
Having regard to the circumstances of these matters as outlined above and the native title party’s history of non-compliance, I considered that it was appropriate to make a springing order. On 22 August 2019 I made directions with the addition of a springing order with respect to the native title party’s compliance with direction 2 in the terms set out above.
The native title party failed to comply with direction 2 and, on 2 October 2019, the Tribunal wrote to parties to advise that the applications had been dismissed with effect from 27 September 2019, in accordance with the springing order.
I note that, in Velickovic v Saunders, then Deputy President Sumner decided (at [22]) that, while it would remain open to the native title party to make submissions on the issue, springing orders would thereafter be included in all directions for objections involving the native title party in that case.
While that course of action may be open to the Tribunal, it will be a matter for the relevant Member. I note that, for the native title party in these matters, the involvement of a number of different representatives means that non-compliance does not arise in each and every matter. I am also aware that the native title party has changed its representation in some matters, which may change in its pattern of non-compliance. Further, as the Tribunal’s current practice in Western Australia is to issue standard directions which commence following the closing date for objections, the inclusion of a springing order would ordinarily be a matter to be raised by parties having regard to the particulars of the case.
Ms Nerida Cooley
Member
19 December 2019
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