Wajarri Yamaji Aboriginal Corporation RNTBC v Lindsay George Camp

[2021] NNTTA 75

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Lindsay George Camp and Others [2021] NNTTA 75 (20 December 2021)

Application No: WO2021/1221

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)

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Lindsay George Camp

(grantee party)

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David Charles Prince

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	20 December 2021

Catchwords:

Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection application 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

Representatives of the grantee party: David Prince; Lindsay Camp

Representative of the Government party: Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

Background

1. This is a decision to dismiss an expedited procedure objection application relating to the proposed grant of prospecting licence P52/1613 (licence) to Lindsay George Camp and David Charles Prince (grantee parties).

2. The State of Western Australia (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 s 29 notice was 2 June 2021.

3. The licence is wholly within the area of the Wajarri Yamatji Determination. On 16 July 2021, the registered native title claimant for the Wajarri Yamatji native title determination application (WAD28/2019) (Wajarri Yamatji Claimant), which was at the time the relevant native title party, lodged an objection against the State’s inclusion of the expedited procedure statement.

4. 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), being the registered native title body corporate which holds native title in trust for the Wajarri Yamatji became a native title party with respect to the licence and a party to the objection application (ss 30(1)(b) and 141(2A) NTA). The Wajarri Yamatji Claimant is no longer a registered native title claimant and has ceased to be a relevant native title party (s 30(2) NTA).

Relevant Facts

1. On 20 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 8 November 2021.

2. At a preliminary conference on 29 July 2021, it was agreed that the grantee parties would liaise further with WYAC regarding the possibility of resolving the objection by agreement. The matter was adjourned to allow those discussions to occur.

3. Further conferences were held on 2 September 2021, 23 September 2021 and 14 October 2021 with little progress being made. At the final conference on 14 October 2021, WYAC’s representative indicated that WYAC’s proposed heritage agreement was still being prepared but was expected to be provided to the grantee parties by the end of the following week.

4. WYAC did not provide any contentions or evidence when its compliance was due on 8 November 2021 and, on 10 November 2021, the State formally requested the objection application be dismissed under s 148(b) due to WYAC’s non-compliance.

5. On 11 November 2021, the Tribunal wrote to all parties acknowledging the State’s request and advising that the objection was at risk of dismissal under s 148(b) of the NTA. Parties were invited parties to provide comments by 18 November 2021.

6. On 16 November 2021, WYAC sought an extension of time to 10 December 2021 on the basis that a draft agreement had been sent to the grantee parties for their review and comment. WYAC explained that, due to the time taken to establish internal processes within WYAC (arising from its new role as registered native title body corporate) and staff workloads, it had not been possible to provide a draft agreement earlier.

7. In response, the State opposed the extension request and reiterated its request for the objection to be dismissed. The State said that, although it appreciated the difficulties faced by WYAC, this licence was notified six months ago and agreement seemed unlikely, particularly given the negotiations had not begun.

8. The grantee parties also opposed the extension and said that they considered WYAC had been allowed “more than sufficient” time to submit its concerns with the licence. They asked that a decision be made as soon as possible.

9. On 18 November 2021, I considered WYAC’s request and the views of the other parties. 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. 

10. In this case, the objection was lodged early in the notification period, as is encouraged by the Tribunal to allow parties to focus on any agreement prior to commencement of the inquiry. Unfortunately, it seems WYAC was unable to take full advantage of that period and it apparently took until around the time the objection was at risk of dismissal for a draft agreement to be sent to the grantee parties. 

11. There was also no indication that WYAC had taken any steps to prepare material for the inquiry, nor that it intended to do so, and therefore there was no compelling basis for the extension of time sought. 

12. However, being mindful of the consequences of dismissal on WYAC’s procedural rights and noting that the position of the grantee parties with respect to an agreement had only recently been made clear, I allowed WYAC two weeks, until 2 December 2021, to provide any contentions and evidence for the inquiry. Parties were advised that if WYAC did not comply by that date (which it did not), I would proceed to consider 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 reasonable time to proceed with the application or to comply with a direction of the Tribunal.

2. As I have said, dismissing an objection is not a matter the Tribunal takes lightly given the consequences for the native title party’s procedural rights. However, I am also mindful that it was 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 considering this dismissal, I have also had regard to the principles outlined in Teelow v Page (at [13]).

3. In this case, WYAC had ample opportunity to resolve the objection by agreement or take steps to provide contentions and evidence.

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 prospecting licence P52/1613 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
20 December 2021