Is (Name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji and Eric Kong and Another

[2017] NNTTA 39

NATIONAL NATIVE TITLE TRIBUNAL

IS (Name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji and Eric Kong and Another [2017] NNTTA 39 (6 July 2017)

Application No: WO2016/0536

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) & Others on behalf of Wajarri Yamatji (WC2004/010)

(native title party)

- and -

Eric Kong

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	6 July 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’)
Representative of the native title party:	Anthony Dann, Wajarri Yamatji

Representative of the grantee party: Mr Eric Kong

Representatives of the Government party:

Mr Michael McMahon, Department of Mines and Petroleum

Ms Bethany Conway, Department of Mines and Petroleum (now the Department of Mines, Industry Regulation and Safety)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 4 May 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 E51/1739 to Eric Kong without requiring Mr Kong or the State to negotiate with the Wajarri Yamatji native title claim group (the Wajarri Yamatji claim group). 3.62 per cent of the area of the proposed licence is overlapped by the Wajarri Yamatji claim group’s native title claim (WC2004/010).

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 Mr Kong.

3. On 29 August 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 21 April 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 2 June 2017.

2. Neither contentions nor evidence were received from the Wajarri Yamatji claim group by 2 June 2017. On 6 June 2017, the State wrote to the Tribunal and all parties requesting the objection be dismissed on the basis that the Wajarri Yamatji claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 6 June 2017, the Tribunal wrote to the representative of the Wajarri Yamatji claim group and Mr Kong, asking them to respond to the State’s request to dismiss the objection. Parties were given until 13 June 2017 to respond. No extension requests or response was received from the Wajarri Yamatji claim group.

4. 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.

5. In the circumstances, the Wajarri Yamatji claim group has 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 licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E51/1739 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
6 July 2017