Wajarri Yamaji Aboriginal Corporation RNTBC v Yandan Gold Mines Pty Ltd

[2022] NNTTA 5

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC v Yandan Gold Mines Pty Ltd and Another [2022] NNTTA 5 (21 January 2022)

Application No: WO2021/1214

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; WCD2018/002)

(native title party)

- and -

Yandan Gold Mines Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms Helen Shurven

Place:

Melbourne

Date:

21 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, 237

Cases:

Evelyn Gilla & Others on behalf of Yugunga-Nya v Omni Projects Pty Ltd & Another [2019] NNTTA 77 (Yugunga-Nya v Omni Projects)

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)

Representative of the native title party:

Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative of the grantee party: Jake Welton, Hetherington Exploration & Mining Title Services (WA) Pty Ltd

Representatives of the Government party: Michael McMahon and Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

BACKGROUND

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia gave notice of its intention to grant exploration licence E51/2045 (the proposed licence) to Yandan Gold Mines Pty Ltd (the grantee party), with a notification date of 30 June 2021. The public notice for the proposed licence, under s 29, included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of an exploration licence, will be an ‘act attracting the expedited procedure’, thereby excluding it from the ‘right to negotiate’ provisions of the Act (see also s 31 and s 32 of the Act). A native title party may object to the application of the expedited procedure statement.

2. When the objection was lodged on 16 June 2021 with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement, the area of the proposed licence was within the area of the native title determination application made by Wajarri Yamatji #1 (WC2004/010).  At the time of this inquiry decision, the proposed licence now falls within the Wajarri Yamatji Part A determination area, which came into effect on 29 July 2021 (see I.S. (Deceased) v Western Australia). 

3. The Wajarri Yamatji Aboriginal Corporation RNTBC holds the determined native title in trust for the Wajarri Yamatji common law holders (the native title party).  Yamatji Marlpa Aboriginal Corporation (YMAC) lodged the objection on behalf of the native title party, as they were the representative for the native title party at that time.  In its covering email, YMAC requested any future contact include a heritage service provider, as well as YMAC.  As the inquiry progressed, it was not clear whether YMAC continued to represent the native title party, however the heritage provider and YMAC were provided with a copy of all materials throughout in the absence of any definitive instructions to the contrary.  On 20 January 2022, YMAC confirmed it did not act for Wajarri Yamatji Aboriginal Corporation RNTBC in this matter.

4. The President of the Tribunal directed me to constitute the Tribunal to conduct the inquiry in this objection application.  It was not necessary for me to determine whether the grant of the proposed licence was an act attracting the expedited procedure, as I have concluded the objection must be dismissed, for the reasons outlined below.

Relevant Facts

1. Following lodgement and acceptance of the objection by the Tribunal, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  These directions were provided to all parties in the notification email sent by the Tribunal.  At the preliminary conference on 6 August 2021, the grantee party indicated they intended to resolve the objection by agreement, and the native title party indicated they had, the day before, sent a draft agreement for the grantee party’s consideration.

2. Under the directions issued, the State complied by 15 November 2021.  The native title party was due to provide their contentions and evidence on or before 6 December 2021, however, no submissions were forthcoming.  The Tribunal wrote to parties on 13 December 2021, stating (with emphasis in the 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 Thursday 16 December 2021 to provide reasons as to why compliance has not been met, and request any further time, for Member Shurven’s consideration and party input.  Further time will not automatically be granted.  If there is no response on or by Thursday 16 December 2021, the matter will be referred back to Member Shurven for consideration of dismissal.

3. No submission or comments were provided by the native title party, and the Tribunal wrote to all parties on 17 December 2021 noting the matter would be referred to me for dismissal.  Again, no comments were received and on 18 January 2022 the Tribunal wrote to all parties informing I was now proceeding to dismissal.

Consideration of dismissal

1. As has been noted in many Tribunal dismissal decisions over the years, and as summarised, for example, in Yugunga-Nya v Omni Projects (at [8]-[9]), there is a broad discretion, under s 148(b) of the Act, for me to 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 their objection application or comply with a Tribunal direction. Parties are advised in the notification email from the Tribunal of the importance of progressing their objection application, and that dismissal may be a consequence in the absence of timely progress.

2. Having regard to the lack of progress in this inquiry, I am satisfied this expedited procedure objection application should be dismissed. 

Decision

1. The expedited procedure objection application in relation to exploration licence E51/2045 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
21 January 2022