Wajarri Yamaji Aboriginal Corporation RNTBC v Gary Allen Tegg
[2022] NNTTA 2
•19 January 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Gary Allen Tegg and Another [2022] NNTTA 2 (19 January 2022)
Application Nos: | WO2021/1218 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
- and -
Gary Allen Tegg (grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 19 January 2022 |
Catchwords: | Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection application dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b), 237 |
Cases: | I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (I.S. (Deceased) v Western Australia) |
| Representatives of the native title party: | Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation Raina Savage, Ethical Engagement Consultancy |
| Representative of the grantee party: | Gary Allen Tegg |
| Representatives of the Government party: | Michael McMahon and Matthew Smith, 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 prospecting licence P20/2449 (the proposed licence) to Gary Allen Tegg (the grantee party), with a notification date of 2 June 2021. The public notice for the proposed licence, under s 29, included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of an exploration 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.
When the objection was lodged on 16 July 2021 with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement, the area of the proposed licence was within the area of the native title determination application made by Wajarri Yamatji #1 (WC2004/010). At the time of this inquiry decision, the proposed licence now falls within the Wajarri Yamatji Part A determination area, which came into effect on 29 July 2021 (see I.S. (Deceased) v Western Australia).
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). Yamatji Marlpa Aboriginal Corporation (YMAC) lodged the objection on behalf of the native title party. In its covering email, YMAC requested any future contact for the inquiry include a heritage service provider, as well as YMAC.
The President of the Tribunal directed me to constitute the Tribunal to conduct the inquiry in this objection application. 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 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. During the initial case management conferences. Wajarri Yamaji noted the delays in the provision of a draft agreement to the grantee party due to factors around setting up the new prescribed body corporate (PBC), and obtaining instructions from the board.
Under the directions issued, the State complied by 18 October 2021. The native title party was due to provide their contentions and evidence on or before 8 November 2021, however, no submissions were forthcoming. The Tribunal wrote to parties on 10 November 2021, stating (with emphasis in the 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 16 November 2021 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 16 November 2021, the matter will be referred back to Member Shurven for consideration of dismissal.
On 10 November 2021, the State requested the matter proceed to be dismissed under s 148(b) for non-compliance with the set directions. The native title party responded on 12 November 2021, outlining delays in establishing the PBC processes, and sought an extension in order to provide the grantee party with a copy of the native title party preferred agreement for consideration. Mr Tegg responded on 16 November 2021, outlining his reasons for wanting to fast-track the objection so he could begin his prospecting activities. Given the competing interests and requests from the parties, I suspended compliance directions and sought to hear from parties in a case management conference.
During the case management conference on 3 December 2021, there was no attendance by either the native title party or the grantee party. Based on the previous updates from parties and particularly taking into account the delays in relation to establishing the PBC mechanisms, and the consequences should the matter be dismissed (which then terminates the native title party objection), I extended the date for compliance for the native title party to 7 January 2022, noting it was the final extension for this matter. This was emailed to parties on 6 December 2021.
No submission or comments were provided by the native title party on or by 7 January 2022. The Tribunal wrote to parties on 11 January 2022, noting the following (emphasis in original), and no response was provided:
Parties were advised on 6 December 2021, that a final extension would be granted and the native title party compliance was now 7 January 2022. In that email advice, it was very clear that ‘this would be the final extension provided’.
The Member will now consider this matter for dismissal. Should any party wish to make any submissions in relation to the dismissal proceeding, please do so by Friday 14 January 2022. If nothing is received, the objection application will be dismissed the following week.
Consideration of dismissal
As has been noted in many Tribunal dismissal decisions over the years, it has a broad discretion, under s 148(b) of the Act, 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 their objection application or to comply with a direction by the Tribunal. Parties are advised in the notification email from the Tribunal of the importance of progressing their objection application, and that dismissal may be a consequence in the absence of timely progress.
Having regard to the lack of progress in this inquiry, I am satisfied this expedited procedure objection application should be dismissed.
Decision
The expedited procedure objection application in relation to prospecting licence P20/2449 is dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
19 January 2022
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