Is (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v Lithium Australia Nl and Another

[2017] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

IS (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v Lithium Australia NL and Another [2017] NNTTA 7 (21 February 2017)

Application No:                 WO2016/0470

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-

The State of Western Australia  (Government party)

-and-

Lithium Australia NL   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              21 February 2017

Date of reasons:                 21 February 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’)

Representative of the        

native title party:              Mr Anthony Dann

Representative of the        

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

Representative of the

grantee party:  Mr Steve Millward, Millward Surveys Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 23 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 E09/2168 (the licence) to Lithium Australia NL without requiring Lithium Australia NL or the State to negotiate with the Wajarri Yamatji native title claim group (the Wajarri Yamatji claim group). The area of the proposed licence wholly overlaps the Wajarri Yamatji 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 Lithium Australia NL.

3. On 20 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 14 December 2016, parties were advised that this matter was to proceed to inquiry on the basis of the age of the matter. That same day, 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 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, Lithium Australia NL’s representative 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 2 February 2017, the Tribunal wrote to the Wajarri Yamatji claim group’s representative and Lithium Australia NL’s representative, asking them to respond to the State’s request to dismiss the objection. Parties were given until 9 February 2017 to respond.

4. On 2 February 2017, the Wajarri Yamatji claim group’s representative wrote to the Tribunal seeking clarification on the status of the matter. The Tribunal responded on the same day, confirming that the dismissal request related to this matter, and clarifying that direction dates were set for the inquiry, with the Wajarri Yamatji claim group due to comply on 1 February 2017. On 9 February 2017, the Tribunal again wrote to the Wajarri Yamatji claim group’s representative, requesting any comments be provided to the Tribunal as soon as possible. No response was received from the Wajarri Yamatji claim group or Lithium Australia NL.  

5. On 13 February 2017, the Tribunal wrote to parties advising that a dismissal of an objection application is a step which terminates the inquiry process, and noting that:

   The matter is at risk of dismissal if the Tribunal does not receive a) Native Title Party contentions or b) a request for extension because an agreement is being negotiated, or c) the objection is withdrawn.

   The Tribunal gave the Wajarri Yamatji claim group until 17 February 2017 to respond. No response was received from the Wajarri Yamatji claim group.

6. 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.

7. 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.

8. In the circumstances, the Wajarri Yamatji claim group have 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 E09/2168 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
21 February 2017