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

[2023] NNTTA 3

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007) v Mining Equities Pty Ltd and the State of Western Australia [2023] NNTTA 3 (20 February 2023)

Application No: WO2022/1131 & WO2022/1132

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)

(native title party)

- and -

Mining Equities Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONs

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	20 February 2023

Catchwords:

Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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: Darren McAulay, Datum Peg Mining Titles Solutions

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

REASONS FOR DETERMINATION

1. On 5 August 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 licences E51/2102 and E51/2104 (exploration licences) to Mining Equities Pty Ltd. The s 29 notice included a statement that the State considers the grant of the proposed licences are acts attracting the expedited procedure under the NTA (expedited procedure statement).

2. If the expedited procedure applies, then the State may grant the proposed licences 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 expedited procedure objection applications to the National Native Title Tribunal (Tribunal).

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

5. The objection applications were 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 licences are acts 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 enquiry. Under those directions, Wajarri Yamaji was directed to provide the Tribunal its contentions and evidence by 16 January 2023. On 23 November 2022, I amended the directions to allow time for the parties to continue negotiations.

3. On 2 February 2023, the Tribunal wrote to all parties noting that Wajarri Yamaji had failed to comply with the directions made and the objections were 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 9 February 2023. No response was received from Wajarri Yamaji’s representative, nor did Wajarri Yamaji 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 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 applications should be dismissed.

Determination

1. The expedited procedure objection applications in relation to exploration licences E51/2102 and E51/2104 are dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
20 February 2023