Wajarri Yamaji Aboriginal Corporation RNTBC v Paul William Jackson
[2023] NNTTA 11
•3 April 2023
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Paul William Jackson and Another [2023] NNTTA 11 (3 April 2023)
Application No: | WO2022/1206 |
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 -
Paul William Jackson
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Member Lisa Eaton |
Place: | Perth |
Date: | 3 April 2023 |
Catchwords: | Native title – future acts – 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, 109(1), 148(b) |
Cases: | David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (David 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 People (Part A) v WA) MICHAEL DANIEL TEELOW/MICHAEL PAGE/NORTHERN TERRITORY [2001] NNTTA 107; 166 FLR 266 (TEELOW V PAGE) |
| Representative of the native title party: | Katrina Thomas, Archaeological Excavations Pty Ltd |
| Representative of the grantee party: | Mick Wilson, GWR Group Limited |
| Representatives of the Government party: | Bethany Conway and Paola O’Neill, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
On 16 September 2022, 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 E51/2115 (licence) to Paul William Jackson (the grantee). The s 29 notice included a statement that the State considers the grant of the proposed licence is a future act attracting the expedited procedure under the NTA.
If the expedited procedure applies, then the State may grant the proposed licence without first requiring all the parties to negotiate in good faith about the grant in accordance with s 31 of the NTA.
Wajarri Yamaji Aboriginal Corporation RNTBC (Wajarri Yamaji) holds non-exclusive native title on trust for the Wajarri People under various determinations, including the determination made in Wajarri Yamatji People (Part A) v WA (Wajarri Yamatji Part A). The proposed licence overlaps Wajarri Yamatji Part A by 36.76%.
On 3 October 2022, Wajarri Yamaji lodged an objection to the State’s inclusion of the expedited procedure statement with the National Native Title Tribunal (Tribunal) in relation to the Wajarri Yamatji Part A determination area.
On 21 December 2022, I was appointed by the President of the Tribunal to constitute the Tribunal for the purposes of this inquiry. At the time of lodgement of the objection, Member Helen Shurven had carriage over the matter.
Relevant Facts
On 7 October 2022, Member Shurven made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Under those directions, Wajarri Yamaji was directed to provide its contentions and evidence by 20 February 2023.
On 17 February 2023, I issued amended directions extending the compliance dates for parties to provide contentions and evidence (amended directions). In accordance with the February amended directions Wajarri Yamaji was directed to provide its contentions and evidence by 6 March 2023.
Wajarri Yamaji did not comply with the amended directions and provide its evidence by 6 March 2023. On 20 March 2023, the Tribunal wrote to all parties, via email, noting that Wajarri Yamaji had failed to comply and that the objection was now at risk of dismissal under s 148(b) of the NTA. The email outlined (emphasis in original):
In the notification email, parties were advised:
If the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application.
Parties are now on notice this matter is at risk of dismissal. The native title party has until 27 March 2023 to provide reasons as to why compliance has not been met, and request any further time, for Member Eaton’s consideration and party input. Further time will not automatically be granted. If there is no response on or by the 27 March 2023, this matter will be referred back to Member Eaton for consideration of dismissal.
No comment was received from any of the parties by 27 March 2023. On 30 March 2023, the Tribunal wrote to all parties and confirmed that no comments had been received and the matter would proceed to dismissal.
Consideration of dismissal
The Tribunal must ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way’: see s 109(1) of the NTA. Under s 148(b) the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails within a reasonable time to proceed with the objection application or to comply with a direction of the Tribunal.
While the Tribunal has broad discretion to dismiss an objection application, it is not an action to be taken lightly. As a consequence of the dismissal of objection applications, native title parties will have no right to negotiate with respect to the doing of the act and the act may be undertaken validly.
In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page (at [13]). I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. Once an objection application is made it is incumbent on the objector to progress the application and to communicate with the Tribunal and all parties. In David Stock v Giralia, the Tribunal outlined this principle (at page 6):
It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the Native Title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.
In this matter Wajarri Yamaji have failed to progress the objection application within a reasonable period of time, despite being afforded sufficient opportunity. They have failed to comply with directions set by the Tribunal; they have not provided any reason for their non-compliance; and no request for an extension of time has been made.
Having regard to all of the facts and circumstances, I am satisfied that the objection application should be dismissed.
Determination
The expedited procedure objection application in relation to E51/2115 is dismissed pursuant to s 148(b) of the NTA.
Ms Lisa Eaton
Member
3 April 2023
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