Wajarri Yamaji Aboriginal Corporation RNTBC v Global Critical Minerals Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Global Critical Minerals Pty Ltd and Another [2022] NNTTA 49 (12 July 2022)

Application No:

WO2022/0083

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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Global Critical Minerals 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:	12 July 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, 148
Cases:	David Stock & Others on behalf of Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (‘Stock v Giralia’) I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (‘Wajarri Yamatji Determination’) Teelow v Page and Another [2001] NNTTA 107; (2001) 166 FLR 266 (‘Teelow v Page’)
Representative of the native title party:	Katrina Thomas, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative of the grantee party:

Dennis Fry, Global Critical Minerals Pty Ltd

Representatives of the Government party:

Bethany Conway/Jake Lincoln, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

This is a decision to dismiss an expedited procedure objection application in relation to the proposed grant of exploration licence E09/2611 (licence) to Global Critical Minerals Pty Ltd (grantee party).
In December 2021, the State of Western Australia, acting through the Department of Mines, Industry Regulation and Safety (State), gave notice of the grant of the licence in accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), specifying 24 December 2021 as the notification day. The s 29 notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure under the NTA.
Wajarri Yamaji Aboriginal Corporation RNTBC (WYAC) holds native title in trust for the Wajarri Yamatji in relation to the majority of the licence area (see Wajarri Yamatji Determination Part A). On 25 January 2022, WYAC lodged an objection against the application of the expedited procedure to the grant of the licence.
The President of the Tribunal has directed me to constitute the Tribunal for the purposes of holding an inquiry into whether the licence is an act attracting the expedited procedure.

Relevant Facts

On 2 February 2022, the Tribunal notified parties of the objection by email, including directions for the conduct of the inquiry, to commence following the closing date for objections. Under those directions, WYAC’s material was to be provided on or before 31 May 2022.
I convened a number of conferences between February and May 2022 to check on progress towards a proposed heritage agreement. The grantee party did not attend the final conference held on 5 May 2022, however WYAC advised it had received the grantee party’s comments on the agreement and expected the issues could be resolved. In those circumstances, no further conference was listed. It was left to the parties to resolve the matter by agreement, or for WYAC to comply by 31 May 2022, or seek an extension of time if needed.
WYAC did not comply by the due date, nor did it seek an extension of time. On 8 June 2022, the Tribunal wrote to all parties advising that the objection application was at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide any comments by 15 June 2022. To date, no response has been received from any party regarding the dismissal of the objection.

Consideration of Dismissal

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.
In considering the dismissal of this application, I have had regard to the principles outlined in Teelow v Page (at [13]). It is also for WYAC, as the native title party, to take steps to progress the objection application within a reasonable timeframe if it wishes to pursue it (see s 148(b) NTA and Stock v Giralia at page 7).
In this case, WYAC was given notice that its application was at risk of dismissal but has not communicated further with the Tribunal. Importantly, WYAC has not provided any reason for its delay, nor sought any additional time for compliance.
Having regard to all the facts and circumstances, I am satisfied that the 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.

Decision

The expedited procedure objection application in relation to exploration licence E09/2611 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
12 July 2022

Wajarri Yamaji Aboriginal Corporation RNTBC initiated proceedings in the National Native Title Tribunal against Global Critical Minerals Pty Ltd and the State of Western Australia concerning a proposed grant of an exploration licence. The central issue before the Tribunal was whether the proposed grant of an exploration licence was an act attracting the expedited procedure under the Native Title Act 1993 (Cth). The Wajarri Yamaji Aboriginal Corporation RNTBC lodged an objection against the application of the expedited procedure to the grant of the licence, which the State had previously specified as an act attracting the expedited procedure. The dispute hinged on whether the Corporation's failure to comply with the Tribunal's directions warranted the dismissal of their objection application.

The legal issues the Tribunal had to address were whether the Corporation's objection application could be dismissed under section 148(b) of the Native Title Act 1993 due to their failure to comply with the Tribunal's directions, and if so, whether the grant of the licence was an act attracting the expedited procedure. The Corporation had been given a deadline to provide their material for the inquiry but failed to do so without explanation or seeking an extension. The Tribunal needed to consider the principles outlined in Teelow v Page and whether the Corporation had taken steps to progress their objection within a reasonable timeframe.

In its decision, the Tribunal noted that it had a broad discretion to dismiss an objection application under section 148(b) of the Native Title Act 1993 if the native title party fails to proceed with the application or comply with a direction within a reasonable time. The Tribunal held that the Corporation had not provided any reason for its delay, nor sought any additional time for compliance, and had not communicated further with the Tribunal after being advised that its application was at risk of dismissal. Considering all the facts and circumstances, the Tribunal was satisfied that the objection application should be dismissed. As a result, the Tribunal did not need to determine whether the grant of the licence was an act attracting the expedited procedure.

The Tribunal dismissed the objection application under section 148(b) of the Native Title Act 1993, concluding that the Corporation's failure to comply with the Tribunal's directions warranted the dismissal of their objection. The Tribunal did not find it necessary to address the substantive issue of whether the grant of the exploration licence was an act attracting the expedited procedure.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established