Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Empire Resources Limited and Another

[2019] NNTTA 84

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Empire Resources Limited and Another [2019] NNTTA 84 (18 October 2019)

Application No: WO2019/0370

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 & Others on behalf of Wajarri Yamatji #1 (WC2004/010)

(native title party)

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Empire Resources Limited

(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 October 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

Cases:

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

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

Representatives(s) of the native title party:

Ms Anthony Dann

Representative(s) of the grantee party: Mr Eamon Cornelius, Western Tenement Services

Representatives(s) of the Government party: Mr 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) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licence E59/2306 (application) to Empire Resources Limited (grantee party), with a notification day of 8 May 2019. 

2. The s 29 notice included a statement that the State considers the grant of the application is an act attracting the expedited procedure under the NTA (expedited procedure statement). If the expedited procedure applies, then the State may grant the application without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the application is located wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010). On 16 May 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 in relation to the application. 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 this matter. Please contact Anthony going forward as YMAC is not involved in the negotiation.”

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 the application is an act attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry for this matter.

Relevant Facts

1. On 21 May 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. On the same day, the directions were sent to all parties by email including Mr Dann, as the representative for the native title party, and YMAC.

2. The native title party was directed to provide its evidence and contentions on or before 1 October 2019. The native title party did not provide any material by the due date, and has not made any request for extension of time to do so.

3. On 3 October 2019, the Tribunal wrote to all parties advising that, due to the native title party’s non-compliance, the objection was at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comments by no later than close of business on 9 October 2019. YMAC was also copied into this correspondence.

4. On 4 October 2019, the grantee party’s representative, Mr Cornelius, wrote to the Tribunal advising that the grantee party supported the dismissal of the objection.  No response was received from the native title party or the State.

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 of these matters, I have had regard to the principles set out in the Tribunal’s decision in Teelow v Page (at [13]). Dismissing an objection application is not a matter the Tribunal takes lightly, given the consequences for the native title party.

3. However, this is a case where dismissal is appropriate, given the failure of the native title party to comply with the Tribunal’s directions or take any step to progress its application.  The native title party has had an opportunity to provide a reason for its non-compliance or to seek an extension of time, but it has not done so.  Further, I am conscious of the native title party’s recent history of non-compliance with Tribunal directions (see Wajarri Yamatji v Gianni).

4. Having regard to all the facts and circumstances, I am satisfied that the objection application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the application is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection application in relation to application E59/2306 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
18 October 2019