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

[2017] NNTTA 21

NATIONAL NATIVE TITLE TRIBUNAL

IS (name withheld for cultural reasons) & Others on behalf of Wajarri Yamatji v Next Advancement Pty Ltd and Another [2017] NNTTA 21 (16 May 2017)

Application No: WO2016/0580; WO2016/0581 and WO2016/0582

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

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

(native title party)

- and -

Next Advancement 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:	16 May 2017
Date of reasons:	16 May 2017

Catchwords:	Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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: Ms Jemimah Mills, Mining Access Legal

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

REASONS FOR DETERMINATION

Background

1. On 1 June 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 E09/2169, E09/2170 and E09/2171 (the licences) to Next Advancement Pty Ltd (Next Advancement) without requiring Next Advancement or the State to negotiate with the Wajarri Yamatji native title claim group (the Wajarri Yamatji claim group). The Wajarri Yamatji native title claim (WC2004/010) overlaps 8.02 per cent of E09/2169, 73.21 per cent of E09/2170 and 100.00 per cent of E09/2171.

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 Next Advancement.

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 each licence. 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 inquiry into these matters.

Should the inquiry proceed or should the matter be dismissed?

1. On 17 March 2017, the Next Advancement requested the matters proceed to inquiry, as no response had been received from Mr Dann, the Wajarri Yamatji representative, to a draft agreement that had been sent to him in November 2016. On 20 March 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 grants. 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 1 May 2017.

2. Neither contentions nor evidence were received from the Wajarri Yamatji claim group by 1 May 2017. On 3 May 2017, the State wrote to the Tribunal, Next Advancement’s representative, and Sarah Cimetta from the Yamatji Marlpa Aboriginal Corporation (YMAC), 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. The State forwarded the dismissal request to Mr Dann on 4 May 2017.

3. On 5 May 2017, the Tribunal wrote to Mr Dann and Next Advancement’s representative, Ms Jemimah Mills, asking them to respond to the State’s request to dismiss the objection. Parties were given until 11 May 2017 to respond. Ms Mills responded that her client was in support of the dismissal request. No response was received from the Wajarri Yamatji claim group and no request for extension of the compliance directions was made.

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. 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.

5. As at the date of this determination, no response has been received from the Wajarri Yamatji claim group as to why the objections should not be dismissed, nor has any request for extension of directions been received, nor any reason for non-compliance.

6. 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 licences can be granted in an expedited way because I have concluded the objections should be dismissed.

Decision

1. The objection applications against exploration licences E09/2169, E09/2170 and E09/2171 are dismissed according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
16 May 2017