Wajarri Yamaji Aboriginal Corporation RNTBC v Hawker Geological Services Pty Ltd

[2022] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Hawker Geological Services Pty Ltd and Another [2022] NNTTA 42 (10 June 2022)

Application No: WO2022/0004

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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Hawker Geological Services 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:	10 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’)

I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (‘Wajarri Yamatji Determination’)

Representative of the native title party:

Katrina Thomas, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative of the grantee party: Brett Anderson, Anderson’s Tenement Management

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

REASONS FOR DETERMINATION

1. This is a decision to dismiss an expedited procedure objection application relating to the proposed grant of exploration licence E09/2553 (licence) to Hawker Geological Services Pty Ltd (grantee party).

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

3. Wajarri Yamaji Aboriginal Corporation RNTBC (WYAC) holds native title in trust for the Wajarri Yamatji in relation to the whole of the area of E09/2553 (see Wajarri Yamatji Determination). On 5 January 2022, WYAC lodged an objection against the application of the expedited procedure to the grant of the licence.

4. 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

1. 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 for any objection. Under those directions, WYAC’s material was to be provided on or before 4 April 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”.

2. At a preliminary conference on 20 January 2022, the grantee party indicated that it was interested in resolving the objection by agreement and was in the process of reviewing a draft agreement provided by WYAC.

3. Further conferences were held on 17 February 2022, 3 March 2022, 17 March 2022 and 7 April 2022 in order to monitor progress prior to the commencement of the directions timetable. On 3 March 2022, I extended the directions timetable to take account of some delay on the part of the grantee party. WYAC’s compliance date was now 2 May 2022.

4. Overall, WYAC and the grantee party reported good progress towards agreement and, by the time of the last conference on 7 April 2022, only a small number of issues were said to remain. It was expected that agreement would be reached prior to the date for WYAC’s compliance.

5. WYAC did not provide any contentions or evidence when its compliance fell due on 2 May 2022 and, on 10 May 2022, the Tribunal wrote to all parties advising that the objection was at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comments by 17 May 2022. To date, no response has been received from any party regarding the dismissal of the objection application.

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

2. In this case, WYAC was afforded additional time to resolve the objection by agreement or to comply with the Tribunal’s directions. 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, which was due over one month ago.

3. Having regard to all of 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

1. The expedited procedure objection application in relation to the exploration licence E09/2553 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
10 June 2022