Is (name withheld for cultural reason) & Others on behalf of Wajarri Yamatji v Cundeelee Pty Ltd and Another

[2017] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

IS (name withheld for cultural reason) & Others on behalf of Wajarri Yamatji v Cundeelee Pty Ltd and Another [2017] NNTTA 51 (29 August 2017)

Application No: WO2016/0441

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

IS (name withheld for cultural reason) & Others on behalf of Wajarri Yamatji (WC2004/010)

(native title party)

- and -

Cundeelee Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date of dismissal:	21 August 2017
Date of determination:	29 August 2017

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 Act1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Western Australia v Ben Ward & Ors on behalf of the Miriuwung Gajerrong peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd [1996] FCA 993; 70 FCR 265 (‘WA v Ward’)
Representative of the native title party:	Mr Anthony Dann, Wadjarri Consulting

Representative of the grantee party: Ms Jennifer Johnson, Tenement Administration Services Pty Ltd

Representatives of the Government party: Mr Matthew L Smith and Mr Michael McMahon, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 9 March 2016, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E09/2162 (the licence) to Cundeelee Pty Ltd (Cundeelee) without requiring Cundeelee or the State to negotiate with the Wajarri Yamatji native title claim group (the Wajarri Yamatji claim group). The Wajarri Yamatji claim group’s native title claim (WC2004/010) wholly overlaps the licence.

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted that the grant can be made without such negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Wajarri Yamatji claim group, the State, and Cundeelee.

3. On 5 July 2016, the Wajarri Yamatji claim group lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 5 May 2017, I held a directions hearing at which Cundeelee noted it had signed an agreement and sent it to the Wajarri Yamatji claim group’s representative for execution. The Wajarri Yamatji representative was unable to be contacted for the directions hearing. I issued directions which were sent to all parties that:

   1.   If the Wajarri Yamatji were satisfied with the agreement that has been signed by the grantee party, Mr Dann send a signed agreement back to Ms Johnson for the grantee party by 26 May 2017.

   2.   If Mr Dann requires more time, he must communicate with parties and the Tribunal on or by 26 May 2017.

2. Neither the agreement nor a request for further time was received from the Wajarri Yamatji claim group by 26 May 2017. On 17 July 2017 and 21 July 2017, the Tribunal wrote to the Wajarri Yamatji claim group and Cundeelee to enquire whether either party could provide a further update in relation to the objection before the Tribunal.

3. On 21 July 2017, the State wrote to the Tribunal and all parties requesting the objection either be dismissed on the basis that no response had been received from the Wajarri Yamatji claim group, or be scheduled for immediate inquiry.

4. On 24 July 2017, 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. The Wajarri Yamatji claim group was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 21 August 2017. Given the history of this matter, where responses from the Wajarri Yamatji were not forthcoming, and considering the State’s request to dismiss, I attached a springing order to the directions – that is, an order providing that if the Wajarri Yamatji claim group did not provide contentions on or by 21 August 2017, the objection application would automatically be dismissed under s 148(b) of the Native Title Act 1993 (Cth). The springing order was also applied as it would be unfair to prejudice the other parties with further delays (WA v Ward). At the same time the Tribunal wrote to parties to seek their availability for an interim conference on 28 July 2017, to enable the Wajarri Yamatji claim group’s representative to provide an update.

5. All of these communications were copied to the Wajarri Yamatji representative. No response was received from emails or calls to the Wajarri Yamatji claim group’s representative, and I therefore vacated the interim conference. Neither contentions nor evidence were received from the Wajarri Yamatji claim group on or by 21 August 2017, and accordingly, as a result of the springing order, the objection was dismissed.

6. The Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection (Teelow v Page). Clear and unambiguous directions, and instructions in relation to the directions and springing order, were provided to all parties, including the Wajarri Yamatji representative.

7. I do not need to answer the question of whether the licence can be granted in an expedited way, as the objection has been dismissed by operation of the springing order on 21 August 2017.

Decision

1. The objection application against exploration licence E09/2162 was dismissed on 21 August 2017 by way of springing order, per s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
29 August 2017