Wajarri Yamaji Aboriginal Corporation RNTBC v Diversified Asset Holdings Pty Ltd

[2022] NNTTA 27

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Diversified Asset Holdings Pty Ltd and Another [2022] NNTTA 27 (4 April 2022)

Application No: WO2021/1456; WO2021/1457

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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Diversified Asset Holdings Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	4 April 2022

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

Cases:

David Stock & Others on behalf of Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (‘Stock v Giralia’)

Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 (‘Wajarri Yamatji Determination Part B’)

I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (‘Wajarri Yamatji Determination Part A’)

Representative of the native title party:

Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative of the grantee party: Bob (Boleslaw) Kozyrski

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

REASONS FOR DECISION

1. This is a decision to dismiss expedited procedure objection applications relating to the proposed grant of exploration licences E09/2483 and E09/2493 (licences) to Diversified Asset Holdings Pty Ltd (grantee party).

2. The State of Western Australia (State) considers the grant of each licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (NTA) and included a statement to that effect in notices given under s 29 of the NTA.

3. Wajarri Yamaji Aboriginal Corporation RNTBC (WYAC) holds native title in trust for the Wajarri Yamatji in relation to the whole of the area of E09/2483 and the majority of the area of E09/2493 (see Wajarri Yamatji Determination Part A and Wajarri Yamatji Determination Part B). On 30 September 2021, WYAC lodged objections against the application of the expedited procedure to the grant of each licence.

Relevant Facts

1. On 22 October 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry, with WYAC’s material due to be provided on or before 17 January 2022.

2. At a preliminary conference held on 4 November 2021, WYAC indicated that these matters would be included in negotiations that were already underway and a further amended agreement had been sent for the grantee party’s consideration that same day.

3. Neither party attended a conference listed for 9 December 2021. At a further conference on 13 January 2022, WYAC indicated that the agreement was being tabled at a board meeting scheduled for 14 January 2022 although it was unable to advise whether the terms of the agreement had been settled. The parties were reminded that WYAC’s compliance was due on 17 January 2022 and no further conference was scheduled.

4. On 18 January 2022, the Tribunal wrote to parties advising that the matters were at risk of dismissal under s 148(b) of the NTA due to WYAC’s non-compliance. Parties were invited to provide any comments by 25 January 2022.

5. On 26 January 2022, WYAC requested a four week extension. Notwithstanding its previous advice about the status of the agreement, WYAC advised that licence E09/2493 lies within an area of the Minangu Land Group for which a heritage service provider (HSP) was yet to be appointed. It indicated the Minangu Land Committee was meeting on 27 January 2022 to decide the HSP and that the additional time would be used to progress negotiations on both matters. In the same correspondence, WYAC confirmed Ms Patricia Edwards as the HSP for licence E09/2483.

6. Neither the grantee party nor the State raised any objection and I approved the extension, requiring WYAC to provide its material by 14 February 2022. I also directed that the matter be listed for a further case management conference on 10 February 2022.

7. On 10 February 2022, WYAC advised that the Minangu Land Committee had nominated Mr Anthony Dann as the HSP for licence E09/2493. No further discussions had yet occurred with the grantee party (who was not in attendance) but WYAC would attempt to contact the grantee party’s representative after the conference. I raised concerns about the age of the matters and advised that, if compliance was not received on 14 February 2022, the matters would be at risk of dismissal. No further hearings were scheduled.

8. WYAC did not comply by the due date and, on 17 February 2022, the Tribunal again informed parties that the objection was at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide any comments by 24 February 2022. Whilst the Tribunal has since been copied into a number of exchanges of correspondence between Mr Dann, Ms Edwards and the grantee party with respect to finalising the objections by agreement, no response has been received from any party regarding the dismissal of the objections. Accordingly, on 15 March 2022, parties were advised I would proceed to consider the dismissal of the matters.

Consideration of dismissal

1. The Tribunal has a broad discretion, under s 148(b) of the NTA, to 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 application or to comply with a direction of the Tribunal. As I have observed previously, dismissing an objection is not a matter the Tribunal takes lightly given the consequences for the native title party’s procedural rights. However, WYAC, as the native title party, must take steps to progress the objection applications within a reasonable timeframe if it wishes to pursue it (see s 148(b) NTA and Stock v Giralia at page 7).

2. In this case, WYAC requested and was afforded additional time to comply. The subsequent correspondence between the parties makes it clear the HSPs are aware of the pending dismissal yet WYAC has not provided any reason for its non-compliance nor sought any additional extension of time. 

3. Having regard to all of the facts and circumstances, I am satisfied the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of either licence is an act attracting the expedited procedure.

Decision

1. The expedited procedure objection applications in relation to exploration licences E09/2483 and E09/2493 are dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
4 April 2022