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

[2021] NNTTA 22

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Errawarra Pty Ltd and Another [2021] NNTTA 22 (25 May 2021)

Application No: WO2020/0799

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 -

Errawarra Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Helen Shurven
Place:	Perth
Date:	25 May 2021

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, 237

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)

Representatives of the native title party:

Ms Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Mr Anthony Dann

Representative of the grantee party: Mr Tim Kavenagh, Kavenagh Legal

Representatives of the Government party: Ms Bethany Conway and 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), the State of Western Australia gave notice of its intention to grant exploration licence E09/2410 to Errawarra Pty Ltd (the grantee party), with a notification day of 18 November 2020. The s 29 notice 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). 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.

2. The area of the proposed licence is wholly located 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.  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 the heritage service provider, Mr Anthony Dann, and YMAC.

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 of the objection and it’s acceptance 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 indicated it would send a draft agreement to the grantee party – this is a usual way of commencing negotiations toward agreement in such objection applications.

2. Under the directions issued, the native title party was due to provide their contentions and evidence on or before 27 April 2021 – this is the usual progression of an objection application inquiry, where parties have been unable to reach agreement.  Another heritage provider for the same native title party had been copied into the correspondence up to that time, as well as YMAC, and on 17 May 2021 the Tribunal forwarded on a copy of the State’s contentions from their 31 April 2021 compliance to Mr Dann and all parties, with a request for any comments by 21 May 2021.

3. That email from the Tribunal on 17 May 2021 included the information that:

   Given there has been no explanation for the lack of compliance, and no request for an extension, and if this continues to be the case up to 21 May 2021, the objection will be referred to Member Shurven for dismissal in the week of 24 May 2021 (emphasis in original)

4. There was subsequently no response from the native title party requesting an extension to the direction dates nor outlining any reasons for the failure to submit any contentions, or any information about progress of the matter toward agreement.

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.

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. Having regard to all the facts and circumstances of this matter, I am satisfied that this objection application should be dismissed.  

Decision

1. The expedited procedure objection application in relation to exploration licence E09/2410 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
25 May 2021