Wajarri Yamaji Aboriginal Corporation RNTBC v Drillabit Pty Ltd
[2022] NNTTA 44
•14 June 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Drillabit Pty Ltd [2022] NNTTA 44 (14 June 2022)
Application No: | WO2022/0025 |
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 -
Drillabit Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 14 June 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: | Jacob Loveland, Lawton Macmaster Legal |
| Representative of the Government party: | Jake Lincoln, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
BACKGROUND
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 E51/2069 (the proposed licence) to Drillabit 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.
The Wajarri Yamaji Aboriginal Corporation RNTBC holds the determined native title in trust for the Wajarri Yamaji common law holders (the native title party/Wajarri Yamaji). The Wajarri Group lodged the objection with the National Native Title Tribunal 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 RNTBC, through the Wajarri Group at a generic ‘heritage’ email address, and relevant emails were copied in.
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
Following 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 on 8 February 2022. A preliminary conference was held on 25 February 2022, where the native title party indicated it would liaise with the grantee party, and compliance directions were left as set, on the basis that parties would communicate in an endeavour to resolve the objection.
Under the directions issued, the State complied on time on 26 April 2022, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 17 May 2022. Nothing was provided.
The Tribunal wrote to parties on 18 May 2022, noting the native title party compliance had not been received, and outlining that (emphasis in original):
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 24 May 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 the 24 May 2022, this matter will be referred back to Member Shurven for consideration of dismissal.
No comments were received from any of the parties on or by 24 May 2022. On 25 May 2022 the Tribunal wrote to all parties, noting the lack of response to the previous email and that ‘Should there be no response by 7 June 2022, the matter will be dismissed with no further communication from the Tribunal about the intention to dismiss’. No response was provided.
This objection is in the inquiry process, and there is an obligation on the Tribunal to ‘pursue the objective of carrying out its 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
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.
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 and throughout the inquiry process highlights the timely nature of the process and the consequences should the objection not be progressed in a timely manner.
Determination
The expedited procedure objection application in relation to E51/2069 is dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
14 June 2022
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