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

[2021] NNTTA 28

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Hottub Pty Ltd and Another [2021] NNTTA 28 (17 June 2021)

Application No: WO2020/0782

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 -

Hottub Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Helen Shurven
Place:	Perth
Date:	17 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 (Teelow v Page)

Representatives of the native title party:

Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Various Heritage Service Providers, Meenangu Wajarri Aboriginal Corporation

Representative of the grantee party: Eamon Cornelius, Western Tenement Services

Representatives of the Government party: Bethany Conway and 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 Act), the State of Western Australia gave notice of its intention to grant exploration licence E51/1975 to Hottub Pty Ltd (the grantee party), with a notification day of 18 November 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 each 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 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 the licence.  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 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 representative indicated he had not yet received formal instructions but it was likely the grantee would want to negotiate an agreement.

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 matter was now at risk of dismissal.  Noting that parties had intended to resolve the objection by agreement, I sought an update from the native title party and grantee party on or by 5 May 2021.

3. Mr Cornelius for the grantee party communicated to the Tribunal and all parties on 5 May 2021 that it was the grantee’s position the objection should be dismissed under s 148(b).

4. On 5 May 2021, Ms Gillon-Grey for the native title party requested a 4 week extension to 25 May 2021 noting: they had been operating on the understanding the grantee would negotiate towards an agreement; 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 nomination.  A different heritage provider was copied into that communication for the native title party.

5. Given the native title party had been proceeding on the apparent basis that the grantee were likely to negotiate, noting that the grantee had now confirmed their position, the native title party were granted an extension to 25 May 2021. 

6. No compliance or communication was forthcoming, and on 9 June 2021, the State wrote to all parties requesting the objection be dismissed under s 148(b).

7. On 10 June 2021 the Tribunal wrote to all parties;

   This matter was at risk of dismissal in May 2021 due to non-compliance.  Despite an extension, and the prospect for agreement, no request for extension or reasons for compliance being missed have been provided, nor has any compliance has been received.

   The State has requested the matter be dismissed, and the grantee had previously made a similar request.

   This matter will now be referred to Member Shurven 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. As such, as early as January 2021, the native title party had been informed of the need to progress their objection in a timely manner.

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 the objection application should be dismissed. 

Decision

1. The expedited procedure objection application in relation to exploration licence E51/1975 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
17 June 2021