Wajarri Yamaji Aboriginal Corporation RNTBC v Red Heart Mines Pty Ltd and the State of Western Australia

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Red Heart Mines Pty Ltd and the State of Western Australia [2022] NNTTA 4 (20 January 2022)

Application No:

WO2021/1452

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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Red Heart Mines Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	20 January 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
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 McGuire, Wajarri Yamaji Aboriginal Corporation Ms Patricia Edwards, Heritage Link

Representative(s) of the grantee party:

Mr Martin Weidermann, MKII Consulting Pty Ltd

Representatives(s) of the Government party:

Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Background

On 28 July 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 E09/2423 (the licence) to Red Heart Mines 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).
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.
On 30 September 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.
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 the heritage service provider, Ms Sharon McGuire.
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.
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.

Relevant Facts

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.
On 13 October 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 10 January 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.
On 11 January 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 18 January 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

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.
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.
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.
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).
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.
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

The expedited procedure objection application in relation to exploration licence E09/2423 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member

20 January 2022

The case of Wajarri Yamaji Aboriginal Corporation RNTBC v Red Heart Mines Pty Ltd and the State of Western Australia was heard by the National Native Title Tribunal. The Wajarri Yamaji Aboriginal Corporation RNTBC, represented by Ms Sharon McGuire, sought to object to the State of Western Australia’s intention to grant an exploration licence to Red Heart Mines Pty Ltd. The State, represented by Ms Bethany Conway, had given notice under the Native Title Act 1993 (Cth) of its intention to grant the licence, and the grantee party, represented by Mr Martin Weidermann, supported the State’s action. The Tribunal was required to determine whether the grant of the exploration licence attracted the expedited procedure under the Act, which would allow the State to bypass the full right to negotiate procedure.

The legal issues at the core of this case revolved around the applicability of the expedited procedure under the Native Title Act 1993 (Cth), and the consequences of the native title party's failure to comply with the Tribunal’s directions. The Tribunal had to consider whether the native title party's lack of compliance with its directions warranted dismissal of the objection application under section 148(b) of the Act. The Tribunal also needed to evaluate whether the grant of the exploration licence was an act attracting the expedited procedure as stated by the State. The outcome of these issues would determine the next steps in the process of granting the exploration licence and the rights of the native title party under the Act.

In its determination, the Tribunal noted that the native title party had failed to comply with its directions to provide submissions and evidence by the due date. The Tribunal had previously warned the native title party that failure to comply with the directions could result in the dismissal of the objection application. Despite this warning, the native title party did not provide any submissions or seek an extension of time. The Tribunal found that the native title party had had sufficient opportunity to comply with the directions but had not done so, nor had it provided any reason for its non-compliance. The Tribunal concluded that the objection application should be dismissed under section 148(b) of the Act due to the native title party's failure to comply with the Tribunal’s directions.

The final orders of the Tribunal were that the expedited procedure objection application in relation to exploration licence E09/2423 was dismissed pursuant to section 148(b) of the Native Title Act 1993 (Cth). This decision effectively cleared the way for the State to proceed with granting the exploration licence to Red Heart Mines Pty Ltd without the need to enter into the full right to negotiate procedure. The dismissal of the objection application also meant that the Wajarri Yamaji Aboriginal Corporation RNTBC would not be able to challenge the grant of the licence under the expedited procedure.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established