Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Bruce John Strapp and Another

[2020] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Bruce John Strapp and Another [2020] NNTTA 14 (18 February 2020)

Application No: WO2019/0753

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 (WC2004/010)

(native title party)

- and -

Bruce John Strapp

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	18 February 2020

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) ss 29, 148

Cases:

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Peter Romeo Gianni and Another [2019] NNTTA 68 (Wajarri Yamatji v Gianni)

Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representative of the native title party:

Mr Raina Savage

Representative of the grantee party: Hong-Jim Saw, Gold Valley Holdings Pty Ltd

Representative of the Government party: Mr Matthew Smith, 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 prospecting licence P20/2383 (licence) to Bruce John Strapp (grantee party), with a notification day of 14 August 2019.

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

3. The area of the proposed licence is wholly located within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 2 September 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.  The objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party however, in its covering email, YMAC advised that any future contact should be with the heritage service provider, Ms Raina Savage.

4. The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry in this matter.

Relevant Facts

1. On 9 September 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, the native title party’s material was due to be provided on or before 21 January 2020. 

2. The native title party did not comply with the Tribunal’s directions and, on 22 January 2020, the Tribunal wrote to parties to advise that the objection was at risk of dismissal under s 148(b) of the NTA and invited parties to provide comments.

3. Later that same day, Ms Savage wrote to the Tribunal to advise that the parties had agreed to enter the Regional Standard Heritage Agreement and she was waiting to receive the signed agreement.  Accordingly, Ms Savage sought a two week extension of time for compliance with the Tribunal’s directions.  The extension request was supported by the other parties and I extended the native title party’s time for compliance to 4 February 2020.  

4. However, the native title party did not comply with the amended directions and the Tribunal therefore sent another email to parties regarding the risk of dismissal on 5 February 2020.  Parties were invited to provide comments by 11 February 2020.  In response, the State formally requested dismissal.  No response was received from the native title party or grantee party.

Consideration of dismissal

1. The Tribunal has a broad discretion, under s 148(b) of the NTA, to 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. In considering the dismissal, I have had regard to the principles set out in Teelow v Page (at [13]) and also taken account of the native title party’s history of non-compliance with the Tribunal’s directions as discussed in Wajarri Yamatji v Gianni and other matters since.

3. In this case, the native title party sought, and was granted, a two week extension of time for compliance.  The native title party has not given any explanation for its non-compliance with that revised timeframe, and no further extension has been sought.

4. 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 prospecting licence P20/2383 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
18 February 2020