Wajarri Yamatji Aboriginal Corporation RNTBC v Redcode Pty Ltd

[2021] NNTTA 73

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamatji Aboriginal Corporation RNTBC v Redcode Pty Ltd and Another [2021] NNTTA 73 (8 December 2021)

Application Nos: WO2021/1213

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)

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Redcode Pty Ltd (grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms Helen Shurven

Place:

Melbourne

Date:

8 December 2021

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), 237

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 Consultancy

Representative of the grantee party: Martin Wiedermann, MKII Consulting Pty Ltd

Representative of the Government party: Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

BACKGROUND

1. 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 exploration licence E20/986 (the proposed licence) to Redcode Pty Ltd (the grantee party), with a notification date of 7 April 2021. The public notice for the proposed licence, under s 29, included an expedited procedure statement. Section 237 of the Act sets out the circumstances in which a future act, such as the grant of an exploration 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.

2. When the objection was lodged on 16 July 2021 with the National Native Title Tribunal (Tribunal) against the inclusion of the expedited procedure statement, the area of the proposed licence 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 licence now falls within the Wajarri Yamatji Part A determination area, which came into effect on 29 July 2021 (see I.S. (Deceased) v Western Australia). 

3. 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 objection 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.

4. The President of the Tribunal directed me to constitute the Tribunal to conduct the inquiry in this objection application.  It was not necessary for me to determine whether the grant of the proposed licence was an act attracting the expedited procedure, as I have concluded the objection must be dismissed, for the reasons outlined below.

Relevant Facts

1. Following lodgement and acceptance of the objection 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 the notification email sent by the Tribunal.  At the preliminary conference on 6 August 2021, the grantee party indicated they were willing to consider an agreement.  Further to an adjourned preliminary conference, the native title party representative indicated on 20 September 2021, that the Prescribed Body Corporate would work with the grantee party on an agreement.

2. Under the directions issued, the State complied by 25 October 2021

3. The native title party was due to provide their contentions and evidence on or before 15 November 2021, however, no submissions were forthcoming.  The Tribunal wrote to parties on 17 November 2021, stating (with emphasis in the original):

   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 [this matter and the aligned matters] are at risk of dismissal. 

   The native title party has until 23 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 23 November 2021, the matter will be referred back to Member Shurven for consideration of dismissal.

4. No comments were received from the native title party on or by 23 November 2021, and on 26 November 2021, the Tribunal wrote to all parties, noting: ‘given that there was no update, nor reasons for non-compliance … the Member will now proceed to dismiss the above application.’  To ensure both the heritage provider and YMAC for the native title party had all relevant documents, the original notification and the State’s compliance was sent to the heritage provider, and again copied to all parties, with a further period up to 6 December 2021 given for any response.

5. No response was provided and the matter is now before me for dismissal.

Consideration of dismissal

1. 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. Parties are advised in the notification email from the Tribunal of the importance of progressing their objection application, and that dismissal may be a consequence in the absence of timely progress.

2. Having regard to the lack of progress in this inquiry, I am satisfied this expedited procedure objection application should be dismissed. 

Decision

1. The expedited procedure objection application in relation to exploration licence E20/986 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
8 December 2021