Wajarri Yamaji Aboriginal Corporation RNTBC v Great Boulder Resources Ltd

[2022] NNTTA 22

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Great Boulder Resources Ltd and Another [2022] NNTTA 22 (23 March 2022)

Application No: WO2021/1789

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, WCD2018/002)

(native title party)

- and -

Great Boulder Resources 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:	23 March 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 the 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’)

Teelow v Page and Another [2001] NNTTA 107; (2001) 166 FLR 266 (‘Teelow v Page’)

Representative of the native title party:

Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative of the grantee party: Shota Hitomi, Lawton Macmaster Legal

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

REASONS FOR DECISION

Background

1. This is a decision to dismiss an expedited procedure application relating to the proposed grant of exploration licence E51/1974 (licence) to Great Boulder Resources Ltd (grantee party).

2. The State of Western Australia (State), acting through the Department of Mines, Industry Regulation and Safety, considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth) (NTA). The State included a statement to that effect in a notice given under s 29 of the NTA, specifying 20 August 2021 as the notification day.

3. Wajarri Yamaji Aboriginal Corporation RNTBC (WYAC) holds native title in trust for the Wajarri Yamatji in relation to the whole of the licence area (see Wajarri Yamatji Determination Part A and Wajarri Yamatji Determination Part B). On 1 December 2021, WYAC lodged an expedited procedure objection application against the application of the expedited procedure to the grant of the licence.

Relevant Facts

1. On 7 December 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, WYAC’s material was due to be provided on or before 31 January 2022.

2. At a preliminary conference on 16 December 2021, the grantee party advised it had received a draft heritage agreement from WYAC, with a view to resolving the objection by agreement. The grantee party intended to review the agreement and provide a response in January 2022. The matter was adjourned to allow that review to occur.

3. A further conference was held on 20 January 2022 at which the grantee party advised it had provided comments on the agreement to WYAC on 17 January 2022. WYAC advised those comments were under consideration by its heritage committee. WYAC indicated that it expected to resolve the matter quickly but would seek an extension if more time was needed. No further conference was scheduled.

4. On 27 January 2022, WYAC sought a three week extension to the directions timetable because parties were negotiating “in hope of reaching agreement shortly”. Neither the State nor the grantee party opposed the request and, on 2 February 2022, I amended the directions to require WYAC to provide its contentions and evidence on or before 21 February 2022.

5. WYAC did not comply by the due date and, on 28 February 2022, the Tribunal 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 4 March 2022. On 8 March 2022, the State requested the objection application be dismissed under s 148(b) due to an absence of any submissions or response from WYAC. On 9 March 2022, the grantee party advised it supported the State’s position. No response was received from WYAC either by 4 March 2022 or since.

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 reasonable time to proceed with the application or to comply with a direction of the Tribunal.

2. 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 application within a reasonable timeframe if it wishes to pursue it (see s 148(b) NTA and Stock v Giralia at page 7). In considering this dismissal, I have also had regard to the principles outlined in Teelow v Page (at [13]).

3. In this case, WYAC requested and was afforded additional time to comply. It has not provided any reason for its non-compliance with the Tribunal’s directions nor sought any additional extension of time.

4. Having regard to all the facts and circumstances, I am satisfied 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

1. The expedited procedure objection application in relation to exploration licence E51/1974 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
23 March 2022