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

[2017] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

IS (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v Cosmopolitan Minerals Limited and Another [2017] NNTTA 11 (23 March 2017)

Application No:                  WO2016/0438; WO2016/0439; WO2016/0440

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

IS (name withheld for cultural reasons) & Others   on behalf of Wajarri Yamatji (WC2004/010)  (native title party)

-and-

Cosmopolitan Minerals Limited   (grantee party)

-and-

The State of Western Australia   (Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              21 March 2017

Date of reasons:                23 March 2017

Catchwords:   Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – springing order – objection applications dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)

Representative of the        

native title party:               Mr Anthony Dann, Wadjarri Consulting

Representative of the        

Government party:            Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Sara Winton,  Mining Access Legal

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

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 licences E52/3391, E52/3392 and E52/3393 (the licences) to Cosmopolitan Minerals Limited (Cosmopolitan) without requiring Cosmopolitan or the State to negotiate with the Wajarri Yamatji native title claim group (the Wajarri Yamatji claim group). The percentage of each licence covered by the Wajarri Yamatji native title claim (WC2004/010) is: 0.10 per cent of E52/3391, 8.56 per cent of E52/3392 and 100 per cent of E52/3393

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

3. On 4 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 licences. To answer the question of whether the licences 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 inquires.

Should the inquiry proceed or should the objection applications be dismissed?

1. On 16 December 2016, parties were advised that this matter was to proceed to inquiry, and I made directions requiring all parties to produce contentions and evidence for the conduct of each inquiry to determine whether or not the expedited procedure was attracted to the grants. The Wajarri Yamatji claim group were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 1 February 2017.

2. Neither contentions nor evidence were received from the Wajarri Yamatji claim group by 1 February 2017. On 2 February 2017, the State wrote to the Wajarri Yamatji claim group’s representative (Mr Anthony Dann), Cosmopolitan’s representative (Ms Sara Winton) and the Tribunal, requesting the objection be dismissed because the Wajarri Yamatji claim group had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 3 February 2017, the Tribunal wrote to Mr Dann and Ms Winton, asking them to respond to the State’s request to dismiss the objection. Parties were given until 10 February 2017 to respond.

4. On 9 February 2017, the Mr Dann wrote to the Tribunal requesting a two week extension on the Wajarri Yamatji claim group’s compliance date, to stay the dismissal request, and allow parties to reach agreement. Ms Winton responded that her client did not wish to pursue negotiations. There was then a further exchange between the two representatives, during which the Wajarri Yamatji claim group expressed a wish to communicate directly with Cosmopolitan, and Ms Winton indicated she did not have instructions to provide direct contact details, and all communication was to go through her as the representative.

5. On 16 February 2017, the Tribunal wrote to all parties as follows:

   Member Shurven notes the emails between parties and that a) the native title party sought an extension of time to continue negotiations, and b) the grantee party wishes to continue with the enquiry process.

   Member Shurven considers it would be premature to dismiss the matter when we are receiving responses from the native title party. Given there seems to be no prospect of agreement between parties, Member Shurven is willing to grant an extension of time to the native title party to lodge any contentions or information about why the expedited procedure should not apply to the grant of these tenements.

   The Tribunal gave the Wajarri Yamatji claim group until 24 February 2017 to comply. No materials were provided by that date, and on 27 February 2017 the State again requested the objections be dismissed.

6. I note Mr Dann is a Wajarri Yamatji claim group heritage provider, and had only relatively recently taken carriage of expedited procedure inquiry matters. Taking these factors into account, I called for a directions hearing to be held on 14 March 2017, to ensure all parties understood the effect of non-compliance, and the consequences of dismissal.

7. At that directions hearing on 14 March 2017, I had detailed discussions with all parties about the inquiry process. Cosmopolitan indicated it wished the matter to proceed expeditiously and objected to further extensions of time being granted to the Wajarri Yamatji claim group. Mr Dann indicated he would like a short period to obtain external advice about how to proceed. Balancing the two parties’ requests, and noting the finality of a decision to dismiss, I granted a further one week extension of the Wajarri Yamatji claim group’s compliance date, to allow Mr Dann time to obtain advice and lodge any materials in support of the group’s objection applications.

8. However, I also applied a springing order to the Wajarri Yamatji claim group’s new compliance date of 21 March 2017, so that if no materials were provided, parties would not be put to further delay and expense in this inquiry process, and the objections would be dismissed. The effect of the springing order was discussed in detail at the directions hearing on 14 March 2017, and reiterated in the amended directions sent to all parties by email.

9. I do not need to answer the question of whether the licence can be granted in an expedited way, as no materials were provided by the Wajarri Yamatji claim group on or by 21 March 2017, and as such, the springing order came into effect and the objections are now dismissed.

Decision

1. The objection applications against exploration licences E52/3391, E52/3392 and E52/3393 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
23 March 2017