Wajarri Yamatji Aboriginal Corporation RNTBC v Sipa Exploration Nl
[2021] NNTTA 42
•19 August 2021
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamatji Aboriginal Corporation RNTBC v SIPA Exploration NL and Another [2021] NNTTA 42 (19 August 2021)
Application Nos: | WO2021/0414; WO2021/0415; WO2021/0416; WO2021/0417 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Wajarri Yamatji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
- and -
SIPA Exploration NL
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 19 August 2021 |
Catchwords: | Native title – future act – 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), 237 |
Cases: | Teelow v Page [2001] NNTTA 107; 166 FLR 266 |
| 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: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Matthew Smith, 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 exploration licences E51/2012, E51/2013, E51/2014 and E51/2015 (the proposed licences) to SIPA Exploration NL (the grantee party), with a notification day of 13 January 2021. The s 29 notice for the proposed licences 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 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.
When objections were lodged on 10 February 2021 with the National Native Title Tribunal against the inclusion of the expedited procedure statement, the area of the proposed licences were wholly within the area of the native title determination application made by Wajarri Yamatji #1 (WC2004/010). As at the time of this inquiry decision, the proposed licences now fall within the Wajarri Yamatji determination area, which came into effect 29 July 2021. 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 both a heritage service provider and YMAC. It appears correspondence to the heritage service provider was at that time to be sent to a generic email address at the Meenangu Wajarri Aboriginal Corporation (MWAC).
The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry in this matter. It was not necessary for me to determine whether the grant of the proposed licences are 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 the notification email sent by the Tribunal. A preliminary conference was held on 26 March 2021 where the grantee party advised they were considering whether to incorporate the proposed licences into an existing agreement or negotiate a new agreement.
Under the directions issued, the State complied on 27 May 2021, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 18 June 2021, however no submissions were provided. The Tribunal wrote to parties on 22 June 2021, stating (with emphasis in the original):
These matters were notified on 11 March 2021, with directions. The State complied on 27 May 2021 as per directions. The native title party was due to comply on 18 June 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.The native title party has until 28 June 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 28 June 2021, the matter will be referred back to Member Shurven for dismissal.
It is noted that at the preliminary conference, the grantee party indicated they may consider incorporating this tenement into an existing agreement – the grantee party is directed to outline the status of the matter to the Tribunal and all parties, on or by Friday 25 June.
The grantee party provided an update on 24 June 2021, indicating:
Sipa had previously considered including these tenements into an existing agreement of which it had taken an assignment of. However, as the native title party’s current preferred agreement is a claim-wide agreement, and to avoid any difficulties in administering the assigned agreement (due to its age), Sipa’s preference is to supersede that assigned agreement with the native title party’s current preferred agreement.
To that end, Sipa returned an amended draft today with a small number of proposed amendments. These amendments, in the usual course, predominantly relate to timeframes and costs.
No comments were received from the native title party or the State. Given parties appeared to be working towards an agreement, I amended directions to extend the native title party compliance to 23 July 2021 with subsequent dates amended accordingly.
The native title party did not provide any contentions and evidence by the amended due date of 23 July 2021 and on 29 July 2021, the Tribunal wrote to parties (emphasis in original), stating:
The native title party has until 4 August 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 4 August 2021, the matter will be referred back to Member Shurven for dismissal.
No response was received to this email directly to the Tribunal, however on 4 August 2021, the Tribunal was copied into an email between the native title party representatives, which noted comments were due to be provided to the Tribunal that day. On 6 August 2021, the Tribunal again wrote to all parties:
I note the native title party was to provide comments on non-compliance by 4 August 2021 and to date, no comments have been received.
Can you please advise the status of the matters as the Member has now returned from leave and will be considering these matters for dismissal in the absence of further comments.
No response was received to the Tribunal’s 6 August 2021 email and on 16 August 2021, the Tribunal again wrote to all parties advising that ‘Given the lack of response to date, the Member will now draft a dismissal decision and publish it this week…’.
Consideration of dismissal
The Tribunal 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 the application or to comply with a direction by the Tribunal. Parties are advised at the outset of an inquiry, in the notification email, 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.
In considering the dismissal, I note the comments in Teelow v Page (at [9]):
The very term "expedited procedure" highlights the nature of the inquiry reposed with the Tribunal. It is an inquiry to achieve an outcome in an informal and speedy manner. The Tribunal should use every endeavour to ensure that expedited procedure inquiries are conducted so that a speedy outcome is achieved. Delays by parties in this context are not just an inconvenience to the Tribunal and to the other parties, but strike at the very core of the nature of these proceedings.
I also have regard to the principles outlined in Teelow v Page (at [13]).
I appreciate that, as noted by the grantee party, parties are negotiating on the basis of the native title party preferred claim wide agreement, which will no doubt capture more tenements than are being addressed in this present inquiry – there is no impediment to parties continuing their negotiations outside of the Tribunal processes. I also appreciate that parties are often dealing with many matters simultaneously, and the resources of all parties are limited. However, communication from the native title party about the status of the negotiations, as it is the native title party who make the objection applications, assists the Tribunal ensure matters move in a timely and effective manner. Having regard to the delays and lack of communication to the Tribunal for these objection applications, I am satisfied they should be dismissed.
Decision
The expedited procedure objection applications in relation to exploration licences E51/2012, E51/2013, E51/2014 and E51/2015 are dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
19 August 2021
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