Wajarri Yamaji Aboriginal Corporation RNTBC v Hammerhead Exploration Pty Ltd
[2022] NNTTA 46
•22 June 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Hammerhead Exploration Pty Ltd and Another [2022] NNTTA 46 (22 June 2022)
Application No: | WO2022/0007 |
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 -
Hammerhead Exploration Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Nerida Cooley |
Place: | Perth |
Date: | 22 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, 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: | Raina Savage, Ethical Engagement Consultancy |
| Representative of the grantee party: | Brianna Wallace, Mining Access Legal |
| 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 relating to the proposed grant of exploration licence E20/979 (licence) to Hammerhead Exploration Pty Ltd (grantee party).
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) in October 2021, specifying
15 October 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 area of E20/797 (see Wajarri Yamatji Determination Part A and Wajarri Yamatji Determination Part B). On 6 January 2022, WYAC lodged an objection against the application of the expedited procedure to the grant of the licence.
The President of the Tribunal 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 12 January 2022, the Tribunal notified parties of the objection by email, including directions for the conduct of the inquiry, which were due to commence following the closing date of the objection. Under those directions, WYAC’s material was to be provided on or before 22 March 2022. Parties were also asked to note that the Tribunal may dismiss the application “if the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal”.
I convened a preliminary conference on 27 January 2022. The grantee party did not appear but WYAC’s representative, Ms Savage, advised that she had only recently received notice of the objection from WYAC and would quickly provide a draft agreement to the grantee party for its consideration.
At a further conference on 17 February 2022, the grantee party advised that it had received, but not yet reviewed, the draft agreement. The grantee party’s then representative Mr Coxhell also indicated that the grantee party would be seeking legal advice from Ms Wallace.
On 21 March 2022, WYAC requested an extension of two weeks to allow additional time for Ms Wallace to review the draft agreement, with a view to the parties resolving the objection by agreement. Both the State and the grantee party supported the requested extension.
Extensions of time are primarily intended for the purposes of preparing contentions and evidence for the Tribunal’s inquiry, although there is nothing to prevent parties continuing to negotiate in parallel. On occasion, extensions are also allowed to enable parties to conclude an agreement, particularly where the matter is close to resolution.
In this case, given the change in representation of the grantee party, the short duration of the extension and the agreement of all parties, I approved the request and allowed WYAC a further two weeks, until 5 April 2022, to provide any contentions or evidence for the inquiry. However, WYAC did not provide any material by that date and has not communicated further with the Tribunal.
On 5 May 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 12 May 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 this dismissal, 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 wished to pursue it (see s 148(b) NTA and Stock v Giralia at page 7).
In this case, WYAC requested, and was afforded, additional time to resolve the objection by agreement or to take steps to comply with the direction of the Tribunal to provide contentions and evidence. WYAC was also 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 E20/979 is dismissed under s 148(b) of the NTA.
Ms Nerida Cooley
Member
22 June 2022
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