Colin Hamlett & Others on behalf of Wajarri Yamatji v Infinity Metals Pty Ltd
[2019] NNTTA 32
•5 June 2019
NATIONAL NATIVE TITLE TRIBUNAL
Colin Hamlett & Others on behalf of Wajarri Yamatji v Infinity Metals Pty Ltd [2019] NNTTA 32 (5 June 2019)
Application No: | WO2018/0607 |
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 (WC2004/010)
(native title party)
- and -
Infinity Metals Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Member Helen Shurven |
Place: | Perth |
Date: | 5 June 2019 |
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, 237, 148 Native Title Amendment Bill 1997 [No. 2] |
Cases: | David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia) Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) |
| Representatives(s) of the native title party: | Mr Anthony Dann Heritage Service Provider |
| Representative(s) of the grantee party: | Mr Jacob Wotherspoon Infinity Metals Pty Ltd |
| Representatives(s) of the Government party: | Mr Matthew Smith, Ms Bethany Conway Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
BACKGROUND
On 2 May 2018, the State Government of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant exploration licence E51/1866 to Infinity Metals Pty Ltd (Infinity Metals). In the notice, the State asserted the proposed grant attracted the expedited procedure. As outlined in s 237 of the Act, the expedited procedure applies where the grant of a licence is not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The registered native title claim of Wajarri Yamatji #1 (WC2004/010) overlaps 96.34 per cent of E51/1866. Yamatji Marlpa Aboriginal Corporation (YMAC) lodged an objection against the assertion of the expedited procedure, on behalf of Wajarri Yamatji #1. YMAC indicated that future contact with Wajarri Yamatji #1 should be with Anthony Dann, ‘the Heritage Service Provide for this area’. YMAC also indicated that it had ‘no further involvement’.
Should the inquiry proceed or should the matters be dismissed?
When the Tribunal originally communicated to all parties, including Mr Dann, indicating the objection to the expedited procedure had been accepted, part of that communication outlined that:
If and once directions are set, the matter will proceed to a listing hearing, if required, and a determination. Parties will be expected to comply promptly with the directions to ensure a full and efficient inquiry.
On 2 April 2019, I made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant of E51/1866. The email sending the directions to all parties, including Mr Dann, included the following statement:
Parties are asked to note:
·if the applicant/objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application…
The State provided their initial compliance within the due date, and copied their materials to Mr Dann and the Infinity Metals representative.
Wajarri Yamatji #1 were due to provide their contentions and evidence on or before 10 May 2019. No materials were provided by Mr Dann or Wajarri Yamatji #1, and on 13 May 2019, the state wrote to the Tribunal, copying in all parties including Mr Dann, seeking a dismissal of the objection application pursuant to s 148(b) of the Act.
On 14 May 2019, the Tribunal notified all parties, including Mr Dann and YMAC, as follows:
The Tribunal has received a request from the government party to dismiss the abovementioned objection under s 148(b) of the Native Title Act 1993 (Cth) on the basis that the native title party has failed to provide contentions and evidence by their due date of 10 May 2019, and no request to extend this date has been received.
If parties wish to make comment on this request, please do so by no later than COB Tuesday, 21 May 2019. This request and any responses will then be put to Member Shurven for her consideration and parties will be advised of the outcome in due course.
On 15 May 2019, Infinity Metals emailed the Tribunal and all parties, including Mr Dann and YMAC, supporting the State’s request for dismissal. On the same day, a representative from YMAC wrote to Mr Dann, copying in the Tribunal, noting the State’s request for the matter to be dismissed and reiterating the closing date to make submissions was Tuesday, 21 May 2019.
There has been no response received from Mr Dann, or on behalf of Wajarri Yamatji #1. I am satisfied that Wajarri Yamatji #1, through Mr Dann, has had a reasonable time in which to comply with Tribunal directions.
In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. Once an objection application is made, it is incumbent on the objector to proceed with the application, and to communicate with the Tribunal and all parties about the application. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia, Deputy President Franklyn QC stated (at page 6):
It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.
Similarly, in the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):
27.10b Replacement item 40 inserts new section 148 which states that the Tribunal has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with Tribunal directions.
27.10c …These limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…
As at the date of this determination, no response has been received from Wajarri Yamatji #1 as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance. In the circumstances, Wajarri Yamatji #1 have been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licences can be granted in an expedited way because I have concluded the objection should be dismissed.
Decision
The objection application against E51/1866 is dismissed pursuant to s 148(b) of the Act.
Helen Shurven
Member
5 June 2019
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