Wajarri Yamaji Aboriginal Corporation RNTBC v Krakatoa Resources Limited

[2022] NNTTA 21

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Krakatoa Resources Limited and Another [2022] NNTTA 21 (23 March 2022)

Application No: WO2021/1788

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 -

Krakatoa Resources Limited

(grantee party)

- and -

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’)

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:

Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative of the grantee party: Claire McGowan, Mining Access 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 E52/3962 (licence) to Krakatoa Resources Limited (Krakatoa).

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 12.82% of the licence area (see Wajarri Yamatji Determination). On 1 December 2021, WYAC lodged an expedited procedure objection application against the application of the expedited procedure to the grant of the licence. WYAC’s objection also related to the proposed grant of exploration licence E52/3938 to Krakatoa.

Relevant Facts

1. On 7 December 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry for both this matter and WO2021/1787 concerning E52/3938. Under those directions, WYAC’s material was due to be provided on or before 31 January 2022.

2. I held conferences with respect to both matters on 16 December 2021 and 20 January 2022. During those conferences both WYAC and Krakatoa indicated they were looking to resolve the objections by agreement, potentially utilising existing agreements between the parties. WYAC also advised that separate agreements would be required for each tenement due to its separate heritage arrangements for each area. No further conference was scheduled after 20 January 2022 and directions remained as originally made.

3. WYAC withdrew its objection with respect to E52/3938 on 27 January 2022. On 28 January 2022, the Tribunal contacted WYAC’s representative, Ms Maguire, to inquire as to the status of the objection in this matter. Ms Maguire advised that separate instructions were required for the area of the licence but she was hopeful instructions would be provided that same day.

4. Also on 28 January 2022, WYAC sought a three week extension to the directions timetable for this matter. The extension request indicated that the parties were close to reaching agreement and that the extension would enable settlement of the matter and withdrawal of the objection. Neither the State nor the grantee party opposed the request and, on 1 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 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 15 March 2022, the State advised it supported the dismissal of the objection application under s 148(b) due to an absence of any submissions or response from WYAC. No response was received from WYAC or the grantee party.

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. From the correspondence it is not clear what transpired with respect to the agreement the parties were seemingly on the cusp of reaching. Neither WYAC nor Krakatoa responded to the Tribunal’s correspondence regarding the potential dismissal of the objection application.

3. Nonetheless, it was for WYAC to action its objection in a reasonable timeframe if it wished to pursue it (see s 148(b) NTA and Stock v Giralia at page 7). It has not done so, nor has it provided any reason for its non-compliance with the Tribunal’s directions.

4. 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

1. The expedited procedure objection application in relation to exploration licence E52/3962 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
23 March 2022