Wajarri Yamaji Aboriginal Corporation v Gary Allen Tegg and the State of Western Australia

[2022] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamaji Aboriginal Corporation v Gary Allen Tegg and the State of Western Australia [2022] NNTTA 19 (8 March 2022)

Application No: WO2021/1805

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 (WCD2017/007)

(native title party)

- and -

Gary Allen Tegg

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	8 March 2022

Catchwords:

Native title – future acts – proposed grant of a prospecting 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:

Ms Sharon McGuire, Wajarri Yamaji Aboriginal Corporation

Representative(s) of the grantee party: Gary Allen Tegg

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

REASONS FOR DETERMINATION

1. On 20 August 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 prospecting licence P20/2450 (proposed licence) to Gary Allen Tegg. 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. On 1 December 2021, the Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007; WAD 28 of 2019) (WYAC) 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. WYAC has status to make the objection application as it holds the determined native title in trust for the Wajarri Yamaji common law holders (see I.S. (Deceased) v Western Australia).

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 13 December 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the enquiry. Under those directions, WYAC was directed to provide the Tribunal its contentions and evidence by 23 February 2022.

3. On 24 February 2022, the Tribunal wrote to all parties noting that WYAC 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 3 March 2022. No response was received from the WYAC’s representative, nor did WYAC 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 significant 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 WYAC, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe (see s 148(b) NTA and Stock v Giralia at page 7).

5. In this case, WYAC 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, WYAC 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 prospecting licence P20/2450 is dismissed pursuant to s 148(b) of the NTA.

Mr Glen Kelly
Member
8 March 2022