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

[2021] NNTTA 29

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Hawker Geological Services Pty Ltd and Another [2021] NNTTA 29 (18 June 2021)

Application No: WO2021/0016

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 -

Hawker Geological Services Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms Helen Shurven

Place:

Perth

Date:

18 June 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(b), 237

Cases:

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

Representatives of the native title party:

Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Various heritage providers, Meenangu Wajarri Aboriginal Corporation

Representatives of the grantee party: Nina Mas and Brett Anderson, Anderson’s Tenement Management

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 (the State) gave notice of its intention to grant exploration licence E09/2420 to Hawker Geological Services Pty Ltd (the grantee party), with a notification day of 16 December 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 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 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 proposed licence is located wholly within the area of the native title determination application made by Wajarri Yamatji #1 (WC2004/010).  On 7 January 2021, 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 a named heritage service provider and YMAC. 

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

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 directions were sent by the Tribunal to all parties on 28 January 2021 in the notification email. A preliminary conference was held on 12 February 2021, where the grantee party indicated a willingness to negotiate an agreement. The heritage service provider did not attend the preliminary conference; Ms Gillon-Grey from YMAC advised she would request the heritage service provider send the preferred draft agreement to the grantee party.

2. Following non-attendance by the heritage service provider at a number of conferences for various objections for this native title party, including this matter, a case management conference list was convened to hear all relevant matters. The list was scheduled for 13 April 2021 - poor telephone reception due to an ongoing cyclone resulted in numerous dropped connections and eventually an inability to re-establish contact with the heritage provider. The matters were subsequently relisted for 29 April 2021 but the Tribunal was unable to make telephone contact with the heritage service provider.

3. Under the directions issued, the State complied on 3 May 2021, copying in all parties. The native title party was due to provide their contentions and evidence on or before 24 May 2021.  No material was provided and the native title party did not request further time to comply.

4. An email sent by the Tribunal on 1 June 2021 to all parties noted that (emphasis in original):

   The native title party has until Tues 8 June 2021 to provide reasons as to why compliance has not been met, and request any further time, for Member Shurvens consideration and party input.  Further time will not automatically be granted.  If there is no response on or by Tues 8 June 2021, the matter will be referred back to Member Shurven for dismissal.

5. 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.  The Tribunal emailed all parties on 9 June as follows:

   Member Shurven notes there has been no substantive response from the email of the Tribunal on 1 June 2021, noting that the native title party had missed its compliance, and that the matter would be referred back to the Member if no explanation or request for extension of compliance dates was provided to the Member for her consideration.

   As such, this matter will now go to the Member as foreshadowed, for dismissal.  The dismissal will be published during the week of 14 June 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. 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]).

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

Decision

1. The expedited procedure objection application in relation to exploration licence E09/2420 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
18 June 2021