Wajarri Yamaji Aboriginal Corporation RNTBC v Nathan Kim Malatesta and the State of Western Australia

[2021] NNTTA 79

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Nathan Kim Malatesta and the State of Western Australia [2021] NNTTA 79 (22 December 2021)

Application No: WO2021/1210

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 -

Nathan Kim Malatesta

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	22 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, 31, 32, 148

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333

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

Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869 (Wajarri Yamatji v WA (No 3))

Teelow v Page [2001] NNTTA 107; 166 FLR 266

Representatives(s) of the native title party:

Ms Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation;
Ms Raina Savage, Ethical Engagement Consultancy

Representative(s) of the grantee party: Mr Nathan Malatesta

Representatives(s) of the Government party: Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

1. On 30 June 2021, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence P21/786 (the licence) to Nathan Kim Malatesta (grantee party). 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 (expedited procedure statement).

2. If the expedited procedure applies, then the State may grant the licence without entering into the full right to negotiate procedure under s 31 of the NTA.

3. On 16 July 2021, Colin Hamlett and Others on behalf of the Wajarri Yamatji native title claim (WC2004/010; WAD 28 of 2019) (native title party) made an expedited procedure objection application to the National Native Title Tribunal. The native title party had status to make the objection application as they were a registered native title claimant at the time the s 29 notice was given.

4. The objection application was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party. In its covering email, YMAC advised that any future contact should be with both the heritage service provider, Ms Raina Savage, and YMAC.  At the time the objection application was lodged, it appeared that there was an arrangement between YMAC and Ms Savage that Ms Savage was to act on behalf of the native title party in all matters relating to the objection application and provide instructions to YMAC.

5. The native title party’s objection application was lodged within the timeframe required under s 32(3) of the NTA and therefore, under s 32(4) of the NTA the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure.

6. As a result of the Federal Court’s determination Wajarri Yamatji v WA (No 3), native title exists in certain areas of the native title party’s claim that overlapped the licence and the Wajarri Yamaji Aboriginal Corporation (WYAC) was determined to hold native title in trust for the common law holders.[1] Subsequently, in the areas of the native title party’s claim subject to the determinations, the registered claimant was removed from the Tribunal’s Register of Native Title Claims and (in the areas where native title was determined to exist) WYAC was added to the National Native Title Register. As such, by virtue of s 141(2A) of the NTA, WYAC replaced the registered native title claimant as the native title party for this objection application.

   [1] The determination gave effect to the conditional determination of native title in I.S. (deceased) on behalf of the Wajarri Yamatji people (part A) v State of Western Australia [2017] FCA 1215.

7. On 16 December 2021, YMAC advised that it no longer represented WYAC in respect to this objection and requested all future correspondence be provided directly to Ms Savage and WYAC.

Relevant Facts

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.

2. On 19 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 was directed to provide the Tribunal its contentions and evidence by 6 December 2021. The native title party did not provide any submissions by the due date and did not make a request for an extension of time to do so.

3. On 7 December 2021, the Tribunal wrote to all parties advising that the native title party had failed to comply with the directions and the objection application was now at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comment by 14 December 2021. That same day, the State wrote to the Tribunal and all parties, requesting that the objection application be dismissed. On 8 December 2021, the grantee party wrote to the Tribunal stating it supported the dismissal of the objection application. No response was received from WYAC’s representative on behalf of the native title party, nor did WYAC undertake any form of compliance with the directions.

Consideration of dismissal

1. Under s 148(b) of the NTA the Tribunal may 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 by the Tribunal.

2. While the Tribunal has a broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.

3. The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with directions are set out in the Tribunal’s decision in Teelow v Page (at [13]). I have applied those principles in my consideration of this matter.

4. I am also mindful that the native title party, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and David Stock v Giralia Resources NL at page 7).

5. In this case the native title party has not given any reason for its non-compliance with the directions of the Tribunal nor sought any additional extension of time. 

6. Having regard to all of the facts and circumstances, I am satisfied that the native title party has had sufficient opportunity to comply with directions set by the Tribunal or to request an extension of time. Having regard to all the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to prospecting licence P21/786 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member

22 December 2021