Is (name withheld for cultural reasons) & Ors on behalf of Wajarri Yamatji v Doray Minerals Limited and Another

[2017] NNTTA 61

NATIONAL NATIVE TITLE TRIBUNAL

IS (name withheld for cultural reasons) & Ors on behalf of Wajarri Yamatji v Doray Minerals Limited and Another [2017] NNTTA 61 (5 October 2017)

Application No: WO2016/0864

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 reasons) & Ors on behalf of Wajarri Yamatji (WC2004/010)

(native title party)

- and -

Doray Minerals Limited

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	5 October 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
Representative of the native title party:	Mr Anthony Dann

Representative of the grantee party: Ms Janet Procack, M & M Walter Consulting

Representative of the Government party: 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 7 September 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 E51/1757 to Doray Minerals Limited (Doray) without requiring Doray or the State to negotiate with the Wajarri Yamatji native title claim group (WC2004/010) (Wajarri Yamatji). The Wajarri Yamatji native title claim overlaps the licence by 100 per cent.

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted 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, the State, and Doray.

3. On 7 December 2016, the Wajarri Yamatji lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. The application was lodged by the Yamatji Marlpa Aboriginal Corporation (YMAC), who clearly outlined Mr Dann was the heritage service provider who was to be the contact person representing Wajarri Yamatji in this matter, and YMAC ‘has no further involvement hereon’.  The application was copied to Mr Dann, all parties and the Tribunal. 

Should the inquiry proceed or should the matter be dismissed?

1. On 12 December 2016, all parties were advised the objection application had been accepted.  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.  A copy of the application was provided, together with Tribunal’s Statement of Expectations, to the party representatives.  The Statement of Expectations includes information such as ‘Parties should comply promptly with the Tribunal’s Directions to allow a full and efficient inquiry. Non-compliance with Directions could lead to dismissal of the objection application’ (emphasis in original).

2. On 3 August 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 were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 13 September 2017.  Parties were advised the objection may be dismissed forthwith if the objector fails within a reasonable time to progress the application or comply with a direction of the Tribunal.

3. Two emails were sent to parties, including Mr Dann, in August 2017 regarding the directions.  The Wajarri Yamatji did not provide contentions or evidence, or make any request for further time to provide the requisite documents, by 13 September 2017. On 20 September 2017, the State wrote to the Tribunal and all parties requesting the objection be dismissed on the basis that the Wajarri Yamatji had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

4. On 21 September 2017, the Tribunal wrote to the representatives of the Wajarri Yamatji and Doray, asking them to respond to the State’s request to dismiss the objection. Parties were given until 28 September 2017 to respond.  The Tribunal received no further communication from any party concerning the request for dismissal.

5. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

6. In the circumstances, the Wajarri Yamatji had sufficient opportunity and notice 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 licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

[10]The objection application against exploration licence E51/1757 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
5 October 2017