Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Phillip Kingsley Slee and Another

[2021] NNTTA 16

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Others on behalf of Wajarri Yamatji #1 v Phillip Kingsley Slee and Another [2021] NNTTA 16 (27 April 2021)

Application No: WO2020/0711

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 -

Phillip Kingsley Slee

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Helen Shurven
Place:	Perth
Date:	27 April 2021

Catchwords:

Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 148

Cases:

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Peter Romeo Gianni and Another [2019] NNTTA 68 (Wajarri Yamatji v Gianni)

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

Representatives of the native title party:

Ms Sharon McGuire, Meenangu Wajarri Aboriginal Corporation Ms Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Representative of the grantee party: Mr Phillip Kingsley Slee

Representative of the Government party: Mr 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 prospecting licence P51/3088-S (the licence) to the grantee party, Phillip Kingsley Slee. The notification day was 4 November 2020. The s 29 notice included a statement that the State considers the grant of the licence to be an act attracting the expedited procedure under the Act (the expedited procedure statement).

2. The area of the proposed licence is wholly located within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 16 November 2020, the registered native title claimant for the Wajarri Yamatji #1 claim (the 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 advised that any future contact should be with both the heritage service provider, Mr Daryl Smith, and YMAC.

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

Relevant Facts

1. On 17 November 2020, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, the native title party’s material was due to be provided on or before 8 April 2021.  Those directions, and the Tribunal’s notification email, were sent to all parties, including the heritage provider and YMAC, on 18 November 2020.  The notification email includes the following information about the role of directions and the obligations of parties in the inquiry process (emphasis added):

   To assist with the inquiry, Member Helen Shurven has issued the attached directions. These directions come into effect after the closing date for objections and require each party to lodge any submissions, documents or other material provided as evidence and relevant to the inquiry by specified dates.

   Any request to vary the directions, including for an extension of time, should be made as early as possible and provide clear reasons for the request, including how the variation sought will assist the Tribunal’s inquiry. Any request to vary the directions must be copied to all parties.

In the notification email, parties were also asked to note: ‘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’.

1. Parties are directed to a preliminary conference in order to indicate, among other things, whether or not parties are likely to reach agreement as a means of resolving the objection application.  At the preliminary conference on 4 December 2020, the native title party undertook to send a preferred heritage agreement to the grantee party for consideration.  On 1 February 2021, the Tribunal emailed parties for an update on progress but none was forthcoming.  A case management conference was scheduled for 12 February 2021, and at that conference the grantee party outlined his view that the draft agreement provided by the native title party was not acceptable to a prospecting licence and was more suitable for larger scale mining. 

2. The inquiry took its course and on 19 March 2021, the State provided its compliance to all parties and the Tribunal. The native title party did not comply with the Tribunal directions on or before 8 April 2021. On 13 April 2021, the Tribunal wrote to parties to advise that the objection was at risk of dismissal under s 148(b) of the Act and invited parties to provide comments by 15 April 2021. The email also included this information:

   If no compliance is provided on or by that date, the matter will go to the Member for consideration for dismissal... If agreement has been reached, or is imminent, the matter may be considered for placement on the settlement list.

3. The grantee party responded on the following day, seeking the matter be dismissed on the basis of the native title party’s non-compliance. No response was received from the native title party or the State.

4. On 16 April 2021, the Tribunal wrote to all parties, outlining:

   Member Shurven notes the grantee party comments, and that no comments have been provided by the native title party in relation to the lack of compliance.

   As such, this matter will now be referred to Member Shurven for dismissal of the objection, which will be actioned as soon as possible…

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. 

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.

2. In considering the dismissal, I have had regard to the principles set out in Teelow v Page (at [13]) and also taken account of the native title party’s history of non-compliance with the Tribunal’s directions as discussed in Wajarri Yamatji v Gianni and other matters since.

3. Having regard to all the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.  Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection application in relation to prospecting licence P51/3088-S is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
27 April 2021