Wajarri Yamaji Aboriginal Corporation RNTBC v Auris Exploration Pty Ltd and the State of Western Australia

[2022] NNTTA 45

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Auris Exploration Pty Ltd and the State of Western Australia [2022] NNTTA 45 (21 June 2022)

Application No: WO2022/0265

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)

(native title party)

- and -

Auris Exploration Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	21 June 2022

Catchwords:	Native title – future act – proposed grant of amalgamation of exploration licence – expedited procedure objection application – failure to comply with direction – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

Teelow v Page [2001] NNTTA 107; 166 FLR 266

Representatives(s) of the native title party:

Heritage Department, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative(s) of the grantee party: Adam Groeneveld, Sandfire Resources Ltd

Representatives(s) of the Government party: Bethany Conway and Jake Lincoln, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 12 November 2021, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant amalgamation AM634595 of exploration licence E51/1120 (proposed amalgamation) to Auris Exploration Pty Ltd (grantee). The s 29 notice included a statement that the State considers the grant of the proposed amalgamation is an act attracting the expedited procedure under the NTA (expedited procedure statement).

2. If the expedited procedure applies, then the State may grant the proposed amalgamation without entering into the right to negotiate procedure under s 31 of the NTA.

3. 78.84% and 21.16% of the proposed amalgamation is situated on native title lands held in trust by the Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007) (Wajarri Yamaji) and the Jidi Jidi Aboriginal Corporation RNTBC (WCD2000/001) (Jidi Jidi) respectively. As such, each are a native title party with the right to object to the expedited procedure statement (see ss 29(2)(a) and 32(3) of the NTA).

4. On 11 January 2022, Wajarri Yamaji exercised their right to lodge an objection to the expedited procedure application with the National Native Title Tribunal (Tribunal).  Jidi Jidi did not exercise their right.

5. Wajarri Yamaji lodged the objection application within the timeframe outlined in s 32(3) of the NTA and therefore, under s 32(4) of the NTA, the Tribunal is required to determine whether the grant of the proposed amalgamation is an act attracting the expedited procedure.

Relevant Facts

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.

2. On 10 March 2022, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. On 22 March 2022, Tribunal staff notified all parties via email of the objection, the directions and the date for a combined preliminary conference and directions hearing (hearing). On 30 March 2022, I convened the hearing. The State and the grantee representatives attended. No representative for Wajarri Yamaji attended.

3. At the hearing, the grantee representative advised that the grantee would prefer to resolve the objection via agreement, but had not yet been contacted by Wajarri Yamaji. The grantee representative also advised there was an existing agreement with Wajarri Yamaji over the underlying exploration licence subject to the proposed amalgamation. They requested the directions be extended by two weeks to account for their extended leave and to allow time to liaise with Wajarri Yamaji. The State agreed to the extension request. I extended the directions and all parties were subsequently notified via email. Under those extended directions, Wajarri Yamaji were to provide the Tribunal their contentions and evidence by 18 May 2022.

4. On 23 May 2022, the Tribunal emailed all parties noting that Wajarri Yamaji had failed to comply with the extended directions and the objection was now at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comments or requests by no later than close of business on 30 May 2022. No response was received from Wajarri Yamaji, nor did they undertake any form of compliance with the directions.

Consideration of dismissal

1. Under s 148(b) of the NTA, the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the native title party fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal.

2. While the Tribunal has broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.

3. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.

4. I am also mindful that Wajarri Yamaji, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7). I note that all of the Tribunal email correspondence referred to at [7]-[8] above included the preferred email address stipulated by Wajarri Yamaji on their objection application (being [email protected]).

5. In this case, Wajarri Yamaji have not provided any reason for non-compliance with the direction of the Tribunal nor sought any additional extension of time.

6. Having regard to all of the facts and circumstances of this matter, Wajarri Yamaji have had sufficient opportunity to either comply with directions set by the Tribunal or to request an extension of time. I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to the grant of amalgamation AM634595 of exploration licence E51/1120 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
21 June 2022