Wajarri Yamaji Aboriginal Corporation RNTBC v Odette Four Pty Ltd and the State of Western Australia

[2022] NNTTA 33

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Odette Four Pty Ltd and the State of Western Australia [2022] NNTTA 33 (5 May 2022)

Application No: WO2022/0017

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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Odette Four Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	5 May 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, 31, 32, 148(b)

Cases:

David Stock v 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 (I.S. (Deceased) v Western Australia)

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

Representatives(s) of the native title party:

Ms Raina Savage, Ethical Engagement Consultancy
Ms Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative(s) of the grantee party: Mr Jacob Loveland, Lawton Macmaster Legal

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

REASONS FOR DETERMINATION

Background

1. On 12 November 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 E20/987 (the licence) to Odette Four Pty Ltd (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 11 January 2022, the Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007; 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 it holds the determined native title in trust for the Wajarri Yamaji common law holders (see I.S. (Deceased) v Western Australia).

4. The objection application was lodged by Wajarri Yamaji Aboriginal Corporation RNTBC (WYAC) on behalf of the native title party. In its covering email, WYAC advised that any future contact should be with the heritage service provider, Ms Sharon McGuire.

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.

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. Under those directions, the native title party was directed to provide the Tribunal its contentions and evidence by 19 April 2022. 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 22 April 2022, 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 29 April 2022. 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 Stock v Giralia 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 exploration licence E20/987 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member

5 May 2022