Wajarri Yamatji Aboriginal Corporation RNTBC v Simon John Lawes
[2021] NNTTA 71
•1 December 2021
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamatji Aboriginal Corporation RNTBC v Simon John Lawes and Another [2021] NNTTA 71 (1 December 2021)
Application Nos: | WO2021/1215 |
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 -
Simon John Lawes (grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 1 December 2021 |
Catchwords: | Native title – future act – proposed grant of 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), 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 Various Heritage Service Providers, Meenangu Wajarri Aboriginal Corporation |
| Representative of the grantee party: | Simon John Lawes |
| 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 licence P51/3216 (the proposed licence) to Simon John Lawes (the grantee party), with a notification date of 2 June 2021. The s 29 notice for the 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 objection was lodged on 16 July 2021 with the National Native Title Tribunal (Tribunal/NNTT) 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).
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, and relevant emails were copied in.
The President of the Tribunal directed me to constitute the Tribunal to conduct the inquiry in the objection application. It was not necessary for me to determine whether the grant of the proposed licence is an act attracting the expedited procedure, as I have concluded the objection must be dismissed, for the reasons outlined below.
Relevant Facts
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 on 26 July 2021. A preliminary conference was scheduled, however, the Mr Lawes indicated he was unavailable for that date and advised he felt the expedited procedure should apply to the grant of the licence. In response, the State provided some additional commentary regarding the inquiry process, noting that:
once an objection to the expedited statement has been received by the NNTT, the parties – including the State, Native Title Party and NNTT – need to know at the earliest opportunity, if the tenement applicant is prepared to negotiate an agreement with the objecting Native Title Party or proceed to have the objection determined via an Inquiry by an NNTT Member.
The Mr Lawes confirmed on 2 August 2021 that he wished the objection application proceed to inquiry. Given there was no prospect of agreement being reached, I vacated the preliminary conference, and emphasised to parties the matter would proceed as outlined in the compliance directions provided to all parties. Under the directions issued, the State complied by 18 October 2021, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 8 November 2021, however, no submissions were provided. The Tribunal wrote to parties on 16 November 2021, stating (with emphasis in the original):
The matter was notified on 26 July 2021, with directions. The State complied on 18 October 2021 as per directions. The native title party was due to comply on 8 November 2021 and no compliance has been received.
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 this matter is 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 Shurvens 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 dismissal.
No comments were received from the native title party, and on 25 November 2021 the Tribunal wrote to all parties, noting (emphasis in original):
Given there has been no response to the Tribunals email below of 16 November 2021, this matter has been referred to Member Shurven who will dismiss the objection application during the week of 29 November 2021.
As the objection is in the inquiry process, 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, 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 comply with a direction made by the Tribunal. Parties are advised in the notification email from the Tribunal, that:
…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…
From the outset of this inquiry, the native title party has been on notice of the need to progress their objection in a timely manner.
Having regard to the lack of progress or communication in this inquiry, I am satisfied this expedited procedure objection application should be dismissed.
Decision
The expedited procedure objection application in relation to prospecting licence P51/3216 is dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
1 December 2021
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