Wajarri Yamaji Aboriginal Corporation RNTBC v Capricorn Orogen Pty Ltd

[2022] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Capricorn Orogen Pty Ltd & Another [2022] NNTTA 31 (21 April 2022)

Application No: WO2022/0011

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

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

Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)

(native title party)

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Capricorn Orogen Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Helen Shurven
Place:	Melbourne
Date:	21 April 2022

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, 31, 32, 109, 148, 237

Native Title Amendment Bill 1997 [No. 2]

Cases:

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

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

Representatives of the native title party:

Sharon McGuire and Katrina Thomas, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative of the grantee party: Sumia Aziz, Mining Access Legal

Representative of the Government party: Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

BACKGROUND

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia gave notice of its intention to grant exploration licence E09/2518 (the proposed licence) to Capricorn Orogen Pty Ltd. The s 29 notice for the proposed licence included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of this proposed licence, will be an ‘act attracting the expedited procedure’, thereby excluding it from the ‘right to negotiate’ provisions of the Act (see also s 31 and s 32 of the Act). A native title party may object to the application of the expedited procedure statement.

2. The Wajarri Yamaji Aboriginal Corporation RNTBC holds the determined native title in trust for the Wajarri Yamaji common law holders (the native title party). The Wajarri Group lodged the objection on behalf of the native title party.  The Wajarri Group requested any future contact be made to a heritage service provider at the Wajarri Yamaji Aboriginal Corporation, through the Wajarri Group at a generic ‘heritage’ email address, and relevant emails were copied in.

3. The President of the Tribunal directed me to constitute the Tribunal to conduct this inquiry.  It was not necessary for me to determine whether the grant of the proposed licence was an act attracting the expedited procedure, as I have concluded the objection must be dismissed, for the reasons outlined below.

Relevant Facts

1. Following lodgement and acceptance of the objection by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  These directions were provided to all parties in the notification email sent by the Tribunal. 

2. Under the directions issued, the State complied on time, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 4 April 2022.  No submissions were provided.  

3. The Tribunal wrote to parties on 12 April 2022, noting the native title party compliance had not been received, and highlighting that:

   In the notification email, parties were advised: If the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.

   Parties are now on notice this matter is at risk of dismissal. The native title party has until COB Tuesday 19 April 2022 to provide reasons as to why compliance has not been met, and request any further time, for Member Shurven’s consideration and party input. Further time will not automatically be granted. If there is no response on or by 19 April 2022, the matter will be referred back to Member Shurven for consideration of dismissal.

4. No comments were received from the native title party on or by 19 April 2022, and on 20 April the Tribunal wrote to all parties, noting ‘the native title party has not provided the information requested. As such, the matter has now been referred to Member Shurven for dismissal of the objection application’.   

5. This objection is in the inquiry process, and there is an obligation on the Tribunal to ‘pursue the objective of carrying out is functions in a fair, just, economical, informal and prompt way’ (s 109 of the Act). Section 148 of the Act deals with the failure to proceed in a reasonable time. In the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):

   27.10bReplacement item 40 inserts new section 148 which states that the Tribunal has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with Tribunal directions. 

   27.10cThese limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…

Consideration of dismissal

1. In considering this dismissal, I have had regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I am 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. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia, the Tribunal outlined (at page 6):

   It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.

2. Wajarri Yamaji have had the opportunity to present their materials in this matter, and having not done so, or communicated with the Tribunal about why they have not done so, I consider this objection application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.  As noted above, information in the notification email highlights the timely nature of the process and the consequences should the objection not be progressed in a timely manner.

Determination

1. The expedited procedure objection application in relation to E09/2518 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
21 April 2022