Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Mark Roy Clatworthy and Another

[2021] NNTTA 26

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Mark Roy Clatworthy and Another [2021] NNTTA 26 (15 June 2021)

Application Nos: WO2020/0786; WO2020/0787

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

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

(native title party)

- and -

Mark Roy Clatworthy

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:

Ms Helen Shurven

Place:

Perth

Date:

15 June 2021

Catchwords:

Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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

Representative of the grantee party: Mark Clatworthy

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 (the State) gave notice of its intention to grant exploration licences E51/1978 and E51/1979 to Mark Roy Clatworthy (the grantee party), with a notification day of 18 November 2020. The s 29 notice for each 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 objections must be dismissed, for the reasons outlined below.

2. The proposed licences are 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 each licence.  The objections were 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.  It appears correspondence to the heritage service provider was to be sent to a generic email address at the Meenangu Wajarri Aboriginal Corporation (MWAC).  Later in the inquiry process, a different heritage provider was copied into correspondence from 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 objections by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  These directions were provided to all parties in the notification email sent by the Tribunal on 19 January 2021.  A preliminary conference was held on 29 January 2021, where early indications were that parties were likely to be at an impasse in terms of reaching agreement, given both the native title party and the grantee party had differing views of the most acceptable form of  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.  No material was provided, however YMAC sent a request to the Tribunal on 5 May 2021 for an extension of time to comply, citing certain administrative pressures including making arrangements for a Prescribed Body Corporate related to the claim determination.  The native title party indicated their preference remained to reach agreement with the grantee party.

3. On 10 May 2021, directions were extended for a four week period – the native title party was due to provide their contentions on 25 May 2021. No contentions or extension requests were received. 

4. An email sent by the Tribunal on 31 May 2021 to all parties noted that (emphasis in original):

   The native title party has until 8 June 2021 to provide reasons as to why compliance has not been met, and request any further time, for Member Shurven’s consideration and party input.  Further time will not automatically be granted.  If there is no response on or 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 2021 as follows: ‘I note the Tribunal did not receive any comments from the native title party by 8 June and the Member will now proceed to dismiss the matter.’

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 these objection applications should be dismissed. 

Decision

1. The expedited procedure objection applications in relation to exploration licences E51/1978 and E51/1979 are dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
15 June 2021