Wajarri Yamaji Aboriginal Corporation RNTBC v Ian Joseph Butler
[2021] NNTTA 74
•10 December 2021
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Ian Joseph Butler and Another [2021] NNTTA 74 (10 December 2021)
Application No: | WO2021/1173; WO2021/1174 |
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)
(native title party)
- and -
Ian Joseph Butler
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 10 December 2021 |
Catchwords: | Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 30, 141, 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’) Teelow v Page and Another [2001] NNTTA 107; (2001) 166 FLR 266 (‘Teelow v Page’) |
| Representatives of the native title party: | Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation; Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Ian Butler |
| Representative of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
Background
This is a decision to dismiss expedited procedure objection applications relating to the proposed grant of prospecting licences P51/3099 and P51/3100 (licences) to Ian Joseph Butler.
The State of Western Australia (State) considers the grant of each 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 s 29 notice was 19 May 2021.
The licences are located wholly within the area of the Wajarri Yamatji Determination. On 7 July 2021, the registered native title claimant for the Wajarri Yamatji native title determination application (WAD28/2019) (Wajarri Yamatji Claimant), which was then the relevant native title party, lodged objections against the State’s inclusion of the expedited procedure statement.
However, on 29 July 2021, the Wajarri Yamatji Determination was entered on the National Native Title Register. At that time, Wajarri Yamaji Aboriginal Corporation RNTBC (WYAC), which holds native title in trust for the Wajarri Yamatji, became a native title party with respect to the licences and a party to the objection applications (ss 30(1)(b) and 141(2A) NTA). The Wajarri Yamatji Claimant is no longer a registered native title claimant for the area of the licences and has ceased to be a relevant native title party (s 30(2) NTA).
Relevant Facts
On 13 July 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, the native title party’s material was due to be provided on or before 25 October 2021.
A preliminary conference was held in these matters on 22 July 2021 and representatives for WYAC (then in the capacity of a heritage service provider) and Yamatji Marlpa Aboriginal Corporation (YMAC) attended the conference on behalf of the Wajarri Yamatji Claimant. At that time, a proposed heritage agreement had not been provided to Mr Butler however he indicated that he would be interested in reviewing any proposed agreement.
A further conference was held on 2 September 2021, by which time WYAC was a registered native title body corporate and the native title party in these matters. At that conference, Mr Butler indicated his preference for the Tribunal’s inquiry to proceed, rather than seeking to resolve the objection by agreement. All parties indicated that they were content to comply with the directions as made on 13 July 2021.
In the event, WYAC did not comply with the Tribunal’s directions and, on 5 November 2021, the Tribunal wrote to parties to advise that the objections were at risk of dismissal under s 148(b) of the NTA and invited parties to provide comments. That same day, the State formally requested the objection applications be dismissed and, on 9 November 2021, Mr Butler advised that he supported the State’s request.
On 11 November 2021, WYAC sought a further period of two weeks to 25 November 2021 (being over four weeks from the due date for compliance) on the basis that it would be seeking instructions to submit material at a board meeting scheduled to take place on 12 November 2021. The State did not object to the extension, however Mr Butler opposed the request on the basis that he believed WYAC had been afforded adequate time to prepare its material.
On 15 November 2021, and again on 17 November 2021, the Tribunal sought further information from WYAC as to the outcomes of the board meeting and whether the expected instructions had been received. That information was to be provided by close of business on 17 November 2021. YMAC did respond on 17 November 2021 to indicate it had followed up on a response on an urgent basis, however no details were forthcoming.
By 25 October 2021, WYAC had already had approximately seven weeks from the 2 September 2021 conference to prepare its material for the inquiry. However, when I came to consider the extension request on 18 November 2021, it was only a short period until the requested extension date of 25 November 2021 and, given the consequences of dismissal for WYAC, I allowed the extension. However, parties were advised that if WYAC did not comply by that date (which it did not), I would proceed to consider dismissal of the objections.
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 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. In considering the dismissal, I have had regard to the principles set out in Teelow v Page (at [13]). I am also mindful that the native title party should be taking steps to progress the objection applications within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).
In this case, it was clear to WYAC, at least from the conference on 2 September 2021, that it would need to provide contentions and evidence to proceed with the objections. It is not apparent that any steps were taken to that end, and it was not until some two weeks after the due date for compliance (and only following notice that the objections were at risk of dismissal) that WYAC sought and was then granted a further two weeks for compliance.
I appreciate that WYAC is relatively new to its role as registered native title body corporate. However, there is no excuse for the failure of communication with the Tribunal and parties evident here. It also appears that YMAC was in a difficult position given a lack of instructions.
Nonetheless, WYAC was afforded additional time. It had 12 weeks from the time it became clear the matter would proceed to inquiry to prepare its contentions and evidence. It has not complied, nor given any explanation for its non-compliance.
Having regard to all the facts and circumstances of these matters, I am satisfied that the objection applications should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of either licence is an act attracting the expedited procedure.
Decision
The expedited procedure objection applications in relation to prospecting licences P51/3099 and P51/3100 are dismissed under s 148(b) of the NTA.
Ms Nerida Cooley
Member
10 December 2021
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