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

[2021] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Haeremai Explorer Pty Ltd and Another [2021] NNTTA 43 (20 August 2021)

Application No: WO2021/0917

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 -

Haeremai Exploration Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Helen Shurven
Place:	Melbourne
Date:	20 August 2021

Catchwords:

Native title – future act – proposed grant of prospecting licence - expedited procedure objection application – native title claim application determined – person ceases to be a native title party - objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 30(2), 148(a), 237

Representatives of the native title party:

Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Sharon McGuire, Meenangu Wajarri Aboriginal Corporation

Representative of the grantee party: Haeremi Exploration Pty Ltd

Representatives of the Government party: 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 under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant prospecting licence to Haeremai Exploration Pty Ltd. The notice for the intended grant included a statement that the State considered the grant attracted the expedited procedure. That is, the State considered the grant would not have the effects outlined in s 237 of the Act, and so the licence could be granted in an expedited way.

2. On 3 May 2021, Colin Hamlett and Others on behalf of the Wajarri Yamatji native title claim (WC2004/010; WAD 28 of 2019) (the native title party) made an expedited procedure objection application to the National Native Title Tribunal. The native title party had status to make this objection application as Wajarri Yamatji was a registered native title claimant in respect of their native title determination application at the time the s 29 notices were given.

Relevant facts

1. Justice Griffiths made orders in the Federal Court on 29 July 2021, that the prescribed body corporate, the Wajarri Yamatji Aboriginal Corporation, would hold the determined native title in trust for the Wajarri Yamatji common law holders (in relation to WC2004/010).  Therefore, the Federal Court determination of 19 October 2017 came into effect.  The areas identified as Part A Determination Area, Part B Determination Area and Part C Determination Area of Wajarri Yamatji were subsequently removed from the Tribunal’s Register of Native Title Claims and added to the National Native Title Register, in the areas where native title was determined to exist.

2. Subsequent to this, the Tribunal Geospatial Services team identified that the objection application area in this matter is no longer covered by a registered native title claimant nor a registered native title body corporate. Instead, the objection application falls within an area where the Federal Court determined that native title does not exist or has been extinguished.

3. According to s 30(2) of the Act, a person ceases to be a native title party if the person ceases to be a registered native title claimant. Section 148(a) of the Act empowers the Tribunal to dismiss an application if at any stage of an inquiry it is satisfied it is not entitled to deal with the application. In relation to the objection application which is the subject of this decision, I consider Wajarri Yamatji no longer has status as a native title party.

4. On 10 August 2021, the Tribunal wrote to the Wajarri Yamatji representative, outlining the Federal Court action and how it would impact on the various expedited procedure objection applications currently with the Tribunal.  The email included the following in relation to this matter:

   …the prospecting license being objected to, falls within an area where it has been determined that native title does not exist. Therefore, it appears Wajarri Yamatji is no longer a party in this matter.

   Section 148(a) of the Act empowers the Tribunal to dismiss an application if it is satisfied that it is not entitled to deal with the application. Member Shurven considers the Tribunal is no longer entitled to deal with this expedited procedure objection application. Member Shurven intends to dismiss this application unless Wajarri Yamatji withdraws its objection.

If you have any comment you wish to make about that course of action, please let me know on or by Monday 16 August 2021.

1. No comment was received. In accordance with s 148(a) of the Act, I am satisfied the Tribunal is no longer entitled to deal with this expedited procedure objection application lodged by Wajarri Yamatji.

Decision

1. The expedited procedure objection application in relation to prospecting licence P51/3210 is dismissed under s 148(a) of the Act.

Ms Helen Shurven
Member
20 August 2021