Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Daniel Mark Di Nunzio and Another
[2021] NNTTA 27
•17 June 2021
NATIONAL NATIVE TITLE TRIBUNAL
Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Daniel Mark Di Nunzio and Another [2021] NNTTA 27 (17 June 2021)
Application No: | WO2020/0785 |
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 & Others on behalf of Wajarri Yamatji #1 (WC2004/010)
(native title party)
- and -
Daniel Mark Di Nunzio
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Helen Shurven |
Place: | Perth |
Date: | 17 June 2021 |
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, 31, 32, 148(b), 237 |
Cases: | Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) |
| Representatives of the native title party: | Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation Various Heritage Service Providers, Meenangu Wajarri Aboriginal Corporation |
| Representative of the grantee party: | Daniel Mark Di Nunzio |
| Representatives of the Government party: | Bethany Conway and Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
BACKGROUND
In accordance with s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia gave notice of its intention to grant prospecting licence P51/3180 to Daniel Mark Di Nunzio (the grantee party), with a notification day of 18 November 2020. The s 29 notice for the licence included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of a prospecting licence, will be an ‘act attracting the expedited procedure’, thereby excluding it from the ‘right to negotiate’ provisions of the Act (see also s 31 and s 32 of the Act). A native title party may object to the application of the expedited procedure statement. In this inquiry, it was not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure, as I have concluded the objection must be dismissed, for the reasons outlined below.
The area of the proposed licence is within the area of the native title determination application made by Wajarri Yamatji #1 (WC2004/010). On 14 December 2020, the registered native title claimant 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 for the grant of the licence. The objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party. In its covering email, YMAC requested any future contact include both a heritage service provider and YMAC. It appears correspondence to the heritage service provider was at that time to be sent to a generic email address at the Meenangu Wajarri Aboriginal Corporation (MWAC).
The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry in this matter.
Relevant Facts
Following lodgement and acceptance of the objection by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. These were provided to all parties in the notification email sent by the Tribunal. A preliminary conference was held on 29 January 2021, where the native title party advised they had provided the draft agreement provided to the grantee party. The grantee was not in attendance and the matter was further adjourned to 12 February 2021 where the grantee confirmed that receipt of the draft agreement, and indications were that parties would consult with each other regards an appropriate form of agreement.
Under the directions issued, the State complied on 30 March 2021, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 27 April 2021. On 30 April 2021, the Tribunal wrote to all party representatives, outlining that the native title party compliance had been missed and the matter was now at risk of dismissal. I sought an update from parties on or by 5 May 2021.
YMAC communicated on 5 May 2021 that the native title party was dealing with various pressing issues such as MWAC recently being nominated by the Wajarri Yamatji community to become the nominated Prescribed Body Corporate and the administration and governance arrangements associated with that, and that it was the native title party’s preference to resolve this via agreement. A different heritage provider was copied into that communication for the native title party.
The native title party were granted an extension to 25 May 2021. On 10 May 2021, the Tribunal wrote to parties, confirming the 25 May 2021 compliance deadline for the native title party, and stating that ‘Parties are now on notice that the inquiry process appears to be the likely avenue to resolve this objection to the expedited procedure’.
No compliance or communication was forthcoming, and on 1 June 2021, the grantee wrote to all parties requesting the objection be dismissed under s 148(b). The grantee provided cogent reasons for the dismissal, outlining the time pressures on his prospecting endeavours and the consequences of delay.
On 9 June 2021 the Tribunal wrote to all parties:
This matter was at risk of dismissal in May 2021 due to non-compliance. Despite an extension, and the prospect for agreement, no request for extension or reasons for compliance being missed have been provided, nor has any compliance has been received.
The grantee party has requested the matter be dismissed.
Given there has been no response from the native title party, this matter will now be referred to Member Shurven for dismissal. The dismissal will be published during the week of 14 June 2021.
Consideration of dismissal
The Tribunal has a broad discretion, under s 148(b) of the Act, 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. Parties are advised at the outset of an inquiry, in the notification email, that:
if the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application…
From the outset of this inquiry, the native title party has been on notice of the need to progress their objection in a timely manner.
In considering the dismissal, I note the comments in Teelow v Page (at [9]):
The very term "expedited procedure" highlights the nature of the inquiry reposed with the Tribunal. It is an inquiry to achieve an outcome in an informal and speedy manner. The Tribunal should use every endeavour to ensure that expedited procedure inquiries are conducted so that a speedy outcome is achieved. Delays by parties in this context are not just an inconvenience to the Tribunal and to the other parties, but strike at the very core of the nature of these proceedings.
I also have regard to the principles outlined in Teelow v Page (at [13]).
Having regard to all the facts and circumstances, I am satisfied this objection application should be dismissed.
Decision
The expedited procedure objection application in relation to prospecting licence P51/3180 is dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
17 June 2021
0
0
0