Wajarri Yamatji Aboriginal Corporation RNTBC v Kym Anthony McClaren
[2021] NNTTA 66
•10 November 2021
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamatji Aboriginal Corporation RNTBC v Kym Anthony McClaren and Another [2021] NNTTA 66 (10 November 2021)
Application Nos: | WO2021/1165 and WO2021/1166 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Wajarri Yamatji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
- and -
Kym Anthony McClaren (grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 10 November 2021 |
Catchwords: | Native title – future act – proposed grant of prospecting licences –expedited procedure objection applications – failure to comply with directions – objection applications dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 109, 148(b), 237 Native Title Amendment Bill 1997 [No. 2] |
Cases: | 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) |
| Representatives of the native title party: | Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation Raina Savage, Ethical Engagement |
| Representative of the grantee party: | Darren McAulay, Datum Peg Mining Titles Solutions |
| Representative of the Government party: | Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DECISION
BACKGROUND
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 prospecting licences P20/2444 and P20/2445 (the proposed licences) to Kym Anthony McClaren (the grantee party), with a notification date of 19 May 2021. The s 29 notice for each proposed licence included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of a prospecting 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.
When the objections were lodged on 7 July 2021 with the National Native Title Tribunal (Tribunal/NNTT) against the inclusion of the expedited procedure statement, the area of the proposed licences 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 licences now fall within the Wajarri Yamatji Part A determination area, which came into effect on 29 July 2021 (see I.S. (Deceased) v Western Australia).
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 objections on behalf of the native title party. In its covering email, YMAC requested any future contact include a heritage service provider as well as YMAC, and relevant emails were copied in.
The President of the Tribunal directed me to constitute the Tribunal to conduct the inquiry in these objection applications. It was not necessary for me to determine whether the grants of each proposed licence were acts attracting the expedited procedure, as I have concluded the objections must be dismissed, for the reasons outlined below.
Relevant Facts
Following lodgement and acceptance of the objections 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 notification emails sent by the Tribunal.
The grantee party requested the proposed licences be aligned with others as negotiations were occurring between parties for a claim wide agreement. At a preliminary conference on the 23 July 2021, all parties supported the matters be progressed together and direction dates be aligned.
Under the directions issued, the State complied on time, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 25 October 2021, however, no submissions were provided. The Tribunal wrote to parties on 27 October 2021, noting the native title party compliance had not been received, and highlighting that:
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 these matters are at risk of dismissal.
The native title party has until 2 November 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 2 November 2021, the matter will be referred back to Member Shurven for consideration of dismissal.
No comments were received from the native title party on or by 2 November 2021, and the next day the Tribunal wrote to all parties, noting: ‘[given] there was no update, nor reasons for the non-compliance from the native title party…The Member will now proceed to dismiss the above applications.’ The heritage provider for the native title party wrote to the Tribunal and all parties on 3 November 2021, outlining they ‘look forward to working with the Grantee to protect cultural heritage’. It appeared also that ‘the current situation with the Wajarri PBC’ [prescribed body corporate] meant that the situation with respect to obtaining instructions and who has standing to comply with directions was ‘unclear’. It appears this situation has continued since approximately July 2021, when the PBC was constituted, and while some allowance can be made in Tribunal processes for a native title party to galvanise themselves to be represented and provide instructions, the Tribunal cannot extend compliance dates indefinitely to allow for same.
These objections are in the inquiry process, and there is an obligation on the Tribunal to ‘pursue the objective of carrying out is functions in a fair, just, economical, informal and prompt way’ (s 109 of the Act). I also note the explanatory memorandum to the Native Title Amendment Bill 1997 [No. 2] (at 27.10b), which highlighted the purpose of s 148 was so that the Tribunal ‘has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with NNTT directions’, and to ‘more efficiently and appropriately manage its processes’ (at 27.10c).
Consideration of dismissal
As has been noted in many Tribunal dismissal decisions over the years, it has a broad discretion, under s 148(b) of the Act, 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 to comply with a direction by the Tribunal. As noted above (at [7]), information in the notification email highlights the timely nature of the process.
Having regard to the lack of progress of the expedited procedure objection applications, I am satisfied they should be dismissed. The native title party may continue to negotiate with the grantee party for the protection of cultural heritage as they have expressed a desire to do so, notwithstanding the dismissal of the objections.
Decision
The expedited procedure objection applications in relation to P20/2444 and P20/2445 are dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
10 November 2021
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