Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Narryer Minerals Pty Ltd and Another
[2021] NNTTA 41
•12 August 2021
NATIONAL NATIVE TITLE TRIBUNAL
Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Narryer Minerals Pty Ltd and Another [2021] NNTTA 41 (12 August 2021)
Application No: | WO2020/0814 |
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 -
Narryer Minerals Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 12 August 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 Service Providers, Meenangu Wajarri Aboriginal Corporation Marcus Holmes, Land Equity Legal |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Bethany Conway and Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
BACKGROUND
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 E52/3875 to Narryer Minerals Pty Ltd (the grantee party), with a notification day of 2 December 2020. The s 29 notice for the proposed 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 a 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 proposed licence is an act attracting the expedited procedure, as I have concluded the objection must be dismissed, for the reasons outlined below.
When an objection was lodged on 15 December 2020 with the National Native Title Tribunal against the inclusion of the expedited procedure statement, the area of the proposed licence was wholly within the area of the native title determination application made by Wajarri Yamatji #1 (WC2004/010) (the native title party). As at the time of this inquiry decision, the area is now 100 percent within the Wajarri Yamatji determination WCD2017/007, which came into effect 29 July 2021. 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 at that time to be sent to a generic email address at the Meenangu Wajarri Aboriginal Corporation (MWAC).
The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry in this matter.
Relevant Facts
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 provided to all parties in the notification email sent by the Tribunal. A preliminary conference was held on 5 February 2021 where the native title party advised they had provided their preferred draft agreement to the grantee party and were awaiting a response. Mr Loveland for the grantee party confirmed receipt of the draft agreement and advised he was waiting instructions.
Under the directions issued, the State complied on 19 April 2021, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 12 May 2021. On 11 May 2021, YMAC requested a four week extension to allow time for comments from the native title party. A different heritage provider was copied into that communication for the native title party. On 17 May 2021, the extension was granted and amended directions were circulated to all parties confirming the amended native title party compliance date of 9 June 2021, with all other dates amended accordingly.
On 4 June 2021, the native title party requested a further four week extension for the same reason. Directions were amended on 9 June 2021, with the native title party compliance date amended to 6 July 2021. On 6 July 2021, no compliance or communication was forthcoming from the native title party and on 13 July 2021 the Tribunal wrote to all parties advising the matter was at risk of dismissal.
On 14 July 2021, in response to the risk of dismissal email, the native title party requested a further four week extension on the basis they were awaiting comment from the grantee party. The State responded to all parties opposing the request for extension noting the objection was lodged seven months ago and has been subject to two extensions previously. The grantee party responded also opposing the extension noting the age, the previously granted extensions, that in their view the negotiations had stalled and that the grant of the licence was significant to Narryer’s commercial strategy.
On 21 July 2021, the Tribunal wrote to all parties:
The role of the Tribunal is to determine whether the expedited procedure applies to the grant of the licence or whether the parties are required to negotiate in good faith under s 31(1)(b) of the Native Title Act 1993 (Cth). While parties may wish to resolve an objection by agreement, negotiations should run in parallel to the steps taken to prepare materials to assist the Tribunal’s inquiry. The Tribunal notes that this is the third extension sought by the native title party in relation to this matter and the native title party should have been taking steps to prepare for the inquiry.
However, it has also become apparent that parties have a different understanding of the status of this matter. It appears that the native title party has been proceeding on the basis that the grantee party remains willing to negotiate while the grantee party’s correspondence received on 20 July 2021 indicates negotiations have stalled and states its support for dismissal of the objection.
Accordingly, in Member Shurven’s absence, Member Cooley will grant a final extension until 3 August 2021 for the native title party to provide any contentions and evidence. If the native title party does not provide any materials in compliance with direction 2 of the directions by this date, this matter will promptly be considered for dismissal.
On 2 August 2021, Mr Holmes wrote to all parties advising that Land Equity Legal had been engaged to assist the native title party in the matter and also requested a further 4 week extension for the native title party to file its contentions and evidence, noting the hope to reach agreement in principle and the time required given the recent native title determination to organise the Prescribed Body Corporate (PBC) which would delay the matter further.
On 4 August 2021, the Tribunal wrote to all parties asking for any comments to be provided on this request by 6 August 2021.
On 4 August 2021, Mr Loveland for the grantee party responded requesting the request for extension be refused and the objection be dismissed under s 148(b) outlining the fact that the native title party had sufficient opportunity to comply with the directions and referring to the Tribunal’s email on 21 July 2021 notifying the native title party that if it did not comply with their compliance direction by 3 August 2021, no further extensions would be granted and the objection would be considered for dismissal. The grantee party response included the following comments:
There is no suggestion that the Native Title Party, following the grant of a final indulgence on 21 July 2021, elected to take any steps towards complying with the Tribunal’s directions…
Allowing a further extension in the circumstances of this case would be contrary to the purpose and policy of the expedited procedure framework.Ms Conway responded for the State, reiterating the age of the matter and advising the State also did not support a further extension:
…the Native Title Party has had ample opportunity to comply with the directions programmed by the member. We reiterate that this application was notified with the inclusion of the Expedited Statement, the objection to which is an Inquiry Process, not a Right to Negotiate. We support parties in reaching agreements to finalise these objections. However, there must be a point in which contentions and evidence need to be produced or the objection dismissed.
On 9 August 2021 the Tribunal wrote to all parties:
Member Shurven has considered the information and argument put forward by all – given that this is not a right to negotiate process, that the grantee has previously outlined its position in relation to the likelihood of agreement, and that both the grantee and the State have provided strong and reasoned argument against extending directions of the native title party further, that request is not accepted.
There will be no extension to directions, given the past lack of compliance – the Tribunal cannot delay the decision in this matter further, particularly while awaiting PBC implications.
As such, Member Shurven will publish a dismissal decision during this week (the week of 9 August), without further delay.
Consideration of dismissal
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…
From the outset of this inquiry, the native title party has been on notice of the need to progress their objection in a timely manner.
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]).
Having regard to all the facts and circumstances, I am satisfied this objection application should be dismissed.
Decision
The expedited procedure objection application in relation to exploration licence E52/3875 is dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
12 August 2021
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