Wajarri Yamaji Aboriginal Corporation RNTBC v Obsidian Mining Corporation Pty Ltd and the State of Western Australia

[2022] NNTTA 47

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Obsidian Mining Corporation Pty Ltd and the State of Western Australia [2022] NNTTA 47 (22 June 2022)

Application No: WO2022/0018

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 (WCD2018/002)

(native title party)

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Obsidian Mining Corporation Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	22 June 2022

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with direction – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

Cases:

David Stock v Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia)

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

Representatives(s) of the native title party:

Heritage Department, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative(s) of the grantee party: Craig Hall, Delta Resource Management Pty Ltd

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

REASONS FOR DETERMINATION

1. On 10 December 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 exploration licence E52/3977 (proposed licence) to Obsidian Mining Corporation Pty Ltd (grantee). The s 29 notice included a statement that the State considers the grant of the proposed 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 proposed licence without entering into the right to negotiate procedure under s 31 of the NTA.

3. 12.48% and 87.53% of the proposed licence is situated on native title lands held in trust by the Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2018/002) (Wajarri Yamaji) and the Jidi Jidi Aboriginal Corporation RNTBC (WCD2000/001) (Jidi Jidi) respectively. As such, each are a native title party with the right to object to the expedited procedure statement (see ss 29(2)(a) and 32(3) of the NTA).

4. On 11 January 2022, Wajarri Yamaji exercised their right to lodge an objection to the expedited procedure application with the National Native Title Tribunal (Tribunal).  Jidi Jidi did not exercise their right.

5. Wajarri Yamaji lodged the objection application within the timeframe outlined in 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 proposed licence is an act attracting the expedited procedure.

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 14 January 2022, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. On 18 January 2022, Tribunal staff notified all parties via email of the objection, the directions and the date for a preliminary conference. On 16 February 2022, I convened the preliminary conference and representatives for all parties attended. The grantee representative advised they had received Wajarri Yamaji’s preferred agreement, would review it and reply to Wajarri Yamaji’s representative.

3. On 16 March 2022 I convened a status conference, where the grantee representative was unavailable. Wajarri Yamaji’s representative advised they had not heard from the grantee representative since the preliminary conference and the State agreed to send a letter requesting the grantee participate in the objection inquiry. On the same day, the State emailed the grantee representative, the Wajarri Yamaji representative and the Tribunal attaching a letter to the grantee. The letter advised that if a ‘grantee fails to participate or show a commitment to the processing of the tenement application through the NTA process ... [it] may be referred to the Minister for Mines and Petroleum for possible refusal consideration’ (emphasis in original). Later the same day, the grantee representative replied to the State, the parties and the Tribunal. They advised ‘I have been working my way through the Access and Heritage Agreement’ and expected to reply to Wajarri Yamaji ‘early next week’.

4. On 6 April 2022, I convened a direction hearing and representatives for all parties attended. The grantee representative advised they had reviewed the Wajarri Yamji agreement and had recommended amendments to the grantee board who would reply within two weeks. All parties requested the directions be extended by two weeks to allow time for negotiations. I extended the directions and all parties were subsequently notified via email. Under those extended directions, Wajarri Yamaji were to provide the Tribunal their contentions and evidence by 31 May 2022.

5. On 1 June 2022, a Tribunal staff emailed all parties noting that Wajarri Yamaji had failed to comply with the extended directions and the objection was now at risk of dismissal under s 148(b) of the NTA. The Tribunal staff invited parties to provide comments or requests by no later than close of business on 8 June 2022 and advised ‘I will be on leave from 3 June 2022 so please include the mailbox [email protected] (copied) in any response’. Before their leave began, the staff also set their out of office reply which advised any sender after 3 June 2022 to email the same mailbox. No response was received from Wajarri Yamaji, nor did they 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 objection application or to comply with a direction of the Tribunal.

2. While the Tribunal has 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 Wajarri Yamaji, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).

5. In this case, Wajarri Yamaji have not provided any reason for non-compliance with the direction of the Tribunal nor sought any additional extension of time.

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

Determination

1. The expedited procedure objection application in relation to the grant of exploration licence E52/3977 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
22 June 2022