Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Debnal Pty Ltd and Another

[2021] NNTTA 23

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Debnal Pty Ltd and Another [2021] NNTTA 23 (31 May 2021)

Application No: WO2020/0788; WO2020/0789

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 -

Debnal Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Ms Helen Shurven
Place:	Perth
Date:	31 May 2021

Catchwords:

Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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 providers, Meenangu Wajarri Aboriginal Corporation

Representative of the grantee party: Jacob Loveland, All Mining Legal

Representatives of the Government party: Bethany Conway and Michael McMahon, Department of Mines, Industry, Regulation and Safety

REASONS FOR DECISION

BACKGROUND

1. 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 exploration licences E51/1972 and E51/1973 to Debnal Pty Ltd (the grantee party), with a notification day of 18 November 2020. The s 29 notice for each 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 an exploration 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 each licence is an act attracting the expedited procedure, as I have concluded the objections must be dismissed, for the reasons outlined below.

2. The area of the proposed licences are 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 each licence.  The objections were 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 to be sent to a generic email address at the Meenangu Wajarri Aboriginal Corporation (MWAC).

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

Relevant Facts

1. 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 grantee party indicated it was reviewing the draft agreement provided by the native title party.

2. 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 matters were now at risk of dismissal.  Noting that parties had intended to resolve the objections by agreement, I sought an update from parties on or by 5 May 2021.

3. Mr Loveland for the grantee party communicated to the Tribunal and all parties on 5 May 2021 that the grantee had been provided an alternative heritage agreement on 25 January 2021 from the native title party, and the grantee had returned a marked up copy to the native title party on 4 February 2021.  No response had yet been received from the native title party.  Mr Loveland also outlined commercial sensitivities effecting the progress of these licences, and that time was of the essence in resolving the inquiries. 

4. Ms Gillon-Grey for the native title party communicated on 5 May 2021 they were considering the returned draft agreement, and 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.  A different heritage provider was copied into that communication for the native title party.

5. Given there were pressing matters for both the grantee and native title party affecting timeliness, a case management conference was scheduled for 14 May 2021 so I could hear from all parties in regards to the circumstances.  It appeared there was some opportunity for agreement to be reached to resolve these objections, and the native title party were granted an extension to 25 May 2021.  On 21 May 2021, the Tribunal wrote to parties, confirming the 25 May 2021 compliance deadline for the native title party, and stating that ‘If no evidence or materials are provided on or by 25 May 2021 by the NTP [native title party], the matters will be referred to Member Shurven for dismissal soon thereafter’.

6. No compliance or communication was forthcoming, and on 26 May 2021, the Tribunal wrote to all parties, noting I had attempted to balance the competing interests of parties in the timetable for the inquiry, and included the following (emphasis in original):

   Given that the native title party compliance has not been met on two occasions, and given the discussions held at the case management conference on 14 May, she [Member Shurven] will now move to dismiss this objection on 31 May 2021.

Consideration of dismissal

1. 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…

2. As such, as early as 19 January in these matters, the native title party understood the need to progress their objections in a timely manner.  This was further emphasised when Mr Loveland outlined the grantee party’s commercial sensitivities on 5 May, which were further emphasised in the case management conference of 14 May 2021.

3. 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]).

4. Having regard to all the facts and circumstances, I am satisfied these objection applications should be dismissed. 

Decision

1. The expedited procedure objection applications in relation to exploration licences E51/1972 and E51/1973 are dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
31 May 2021