Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007) v Mineral Fields Pty Ltd and the State of Western Australia

[2023] NNTTA 5

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007) v Mineral Fields Pty Ltd and the State of Western Australia [2023] NNTTA 5 (8 March 2023)

Application No: WO2022/1133

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection application

Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)

(native title party)

- and -

Mineral Fields Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	8 March 2023

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

Representatives(s) of the native title party:

Sharon Zappelli, Wajarri Yamaji Aboriginal Corporation RNTBC

Representative(s) of the grantee party: Brian Liau, Mining Access Legal

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

REASONS FOR DISMISSAL

1. On 2 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 E52/4093 (exploration licence) to Mineral Fields Pty Ltd. 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. Wajarri Yamaji Aboriginal Corporation RNTBC (Wajarri Yamaji) holds non-exclusive native title on behalf of the Wajarri People. On 13 September 2022, Wajarri Yamaji made an expedited procedure objection application to the National Native Title Tribunal (Tribunal).

4. The area of the proposed licence is located entirely within the area of the Wajarri Yamatji Part A determination area.

5. The objection application was lodged 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 21 September 2022, I 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 the Tribunal its contentions and evidence by 10 February 2023.

3. On 14 February 2023, the Tribunal wrote to all parties noting that Wajarri Yamaji had failed to comply with the directions made and the objection was now at risk of dismissal under s 148(b) of the NTA. Parties were invited to provide comment by no later than close of business on 21 February 2023. No response was received from Wajarri Yamaji’s representative, nor did Wajarri Yamaji undertake any form of compliance with the directions.

4. On 22 February 2023, the Tribunal wrote to all parties advising the matter would proceed to dismissal for non-compliance.

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 serious 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 applications within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).

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

6. In the circumstances, Wajarri Yamaji has had sufficient opportunity to comply with directions set by the Tribunal or to request an extension of time. Having regard to all of 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 E52/4093 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
8 March 2023