Is (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v KS Gold Pty Ltd and Another

[2017] NNTTA 16

NATIONAL NATIVE TITLE TRIBUNAL

IS (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v KS Gold Pty Ltd and Another [2017] NNTTA 16 (2 May 2017)

Application No: WO2016/0576

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 -

KS Gold 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:	2 May 2017
Date of reasons:	2 May 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 Act 1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Representatives of the native title party:	Mr Anthony Dann, Wadjarri Consulting

Representative of the grantee party: Mr Martin Wiedemann, MK2 Consulting Pty Ltd

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

REASONS FOR DETERMINATION

Background

1. On 18 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 E51/1715 to KS Gold Pty Ltd (KS Gold) without requiring KS Gold or the State to negotiate with the Wajarri Yamatji native title claim group (the Wajarri Yamatji claim group). The area of the proposed licence is wholly 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 KS Gold.

3. On 12 September 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 23 February 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 5 April 2017.

2. Neither contentions nor evidence were received from the Wajarri Yamatji claim group by 5 April 2017. On 6 April 2017, the State wrote to the Tribunal and all parties, 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 the Tribunal's directions.

3. The Tribunal then wrote to the Wajarri Yamatji claim group’s representative and the KS Gold representative, asking them to respond to the State’s request to dismiss the objection. Parties were given until 13 April 2017 to respond. Mr Wiedemann, the representative for KS Gold, responded that his client had received a request from the Wajarri Yamatji claim group’s representative to execute an agreement for heritage protection, and he was not in a position to comment on the State’s request for dismissal, save to include the following comment:

   Notwithstanding the ongoing negotiations which may occur under the auspices of the expedited procedure inquiry process, parties to that process are still required to comply with the Tribunal’s directions and timeframes set. Where a party is not able to comply with a timeframe there is liberty to apply to the Tribunal for directions to be varied. As far as the grantee party is aware, no such application has been sought.

   No response was received from the Wajarri Yamatji claim group and no request for extension of the compliance directions was made.

4. Given the lack of response from the Wajarri Yamatji claim group’s representative, the matter was listed for an interim status conference on 21 April 2017. The Wajarri Yamatji claim group’s representative did not attend or respond to the Tribunal’s communications on this matter. At the status conference, the State reiterated the request for dismissal. Mr Wiedemann and the State did not object to a further 5 days being allowed for the Wajarri Yamatji claim group’s representative to respond, and the Tribunal communicated that extension to all parties on 21 April 2017.

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. 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.

6. As at the date of this determination, no response has been received from the Wajarri Yamatji claim group 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.

7. 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 E51/1715 is dismissed according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
2 May 2017