Wajarri Yamaji Aboriginal Corporation v Golden Wheelbarrow Prospecting No 3 Pty Ltd and the State of Western Australia
[2021] NNTTA 76
•21 December 2021
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation v Golden Wheelbarrow Prospecting No 3 Pty Ltd and the State of Western Australia [2021] NNTTA 76 (21 December 2021)
Application No: | WO2021/1153 WO2021/1154 WO2021/1216 |
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 -
Golden Wheelbarrow Prospecting No 3 Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 21 December 2021 |
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 & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (Stock v Giralia) Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107 (Teelow v Page) |
| Representatives of the native title party: | Ms Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation Ms Patricia Edwards, Heritage Link |
| Representative of the grantee party: | Mr Darren McAulay, Datumpeg Mining Titles Solutions |
| Representative of the Government party: | Mr Michael McMahon and Ms Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
On 7 April 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 licences E51/2024 and E51/2026 to Golden Wheelbarrow Prospecting No 3 Pty Ltd (grantee party). On 2 June 2021, the State gave notice under s 29 of the NTA of its intention to grant exploration licence E51/2039 to the grantee party. Collectively E51/2024, E51/2026 and E51/2039 comprise the proposed licences. The s 29 notices for the proposed licences included a statement that the State considers the grant of the proposed licences is an act attracting the expedited procedure under the NTA (expedited procedure statement).
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.
The area of the proposed licences is located entirely within the area of the Wajarri Yamatji determination. On 7 July 2021, the registered native title claimant for the Wajarri Yamatji claim group (Wajarri Yamatji Claimant), which was then the relevant native title party, lodged objections with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement in relation to the grant of exploration licences E51/2024 and E51/2026. On 16 July 2021, the Wajarri Yamatji Claimant, lodged an objection with the Tribunal against the inclusion of the expedited procedure statement in relation to the grant of exploration licence E51/2039.
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 is an act attracting the expedited procedure.
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 WO2021/1153 and WO2021/1154. Member Helen Shurven was initially appointed to constitute the Tribunal for the purposes of the inquiry in WO2021/1216.
On 9 June 2021, I made directions in WO2021/1153 and WO2021/1154 requiring all parties to provide contentions and evidence for the conduct of the enquiry. Under those directions, the native title party was directed to provide the Tribunal its contentions and evidence by 13 September 2021.
On 22 July 2021, Member Shurven made directions in WO2021/1216 requiring all parties to provide contentions and evidence for the conduct of the enquiry. Under those directions, the native title party was directed to provide the Tribunal its contentions and evidence by 8 November 2021.
On 4 August 2021, I made amended directions in WO2021/1153 and WO2021/1154. Under those directions the native title party was directed to provide the Tribunal its contentions and evidence by 11 October 2021.
On 5 August 2021, Member Shurven reallocated WO2021/1216, revoking her own appointment and appointing me to constitute the Tribunal for the purpose of the inquiry.
On 15 September 2021, I made amended directions in WO2021/1153, WO2021/1154 and WO2021/1216. Under those directions the native title party was directed to provide the Tribunal its contentions and evidence by 6 December 2021.
On 7 December 2021, the Tribunal wrote to all parties noting that the native title party 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 14 December 2021.
On 7 December 2021, the State wrote to the Tribunal and all parties, noting the native title party’s non-compliance and requesting that the objection be dismissed. Also on 7 December 2021, the grantee party wrote to the Tribunal supporting the dismissal of the objection. No response was received from the native title party.
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 objection application or to comply with a direction of the Tribunal.
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.
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 Stock v Giralia at page 7).
In this case, the native title party has not provided any reason for its non-compliance with the directions of the Tribunal nor sought any additional extension of time.
In the circumstances, 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 of the facts and circumstances of this matter, I am satisfied that the objection applications should be dismissed.
Determination
The expedited procedure objection applications in relation to exploration licences E51/2024, E51/2026 and E51/2039 are dismissed pursuant to s 148(b) of the NTA.
Mr Glen Kelly
Member
21 December 2021
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