Wajarri Yamatji Aboriginal Corporation RNTBC v Westernx Pty Ltd/Trillbar Resources Pty Ltd

[2021] NNTTA 54

NATIONAL NATIVE TITLE TRIBUNAL

Wajarri Yamatji Aboriginal Corporation RNTBC v Westernx Pty Ltd/Trillbar Resources Pty Ltd and Another [2021] NNTTA 54 (5 October 2021)

Application No: WO2021/0918

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Wajarri Yamatji Aboriginal Corporation RNTBC (WCD2017/007)

(native title party)

- and -

Westernx Pty Ltd/Trillbar Resources Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:

Ms Helen Shurven

Place:

Melbourne

Date:

5 October 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)

Teelow v Page [2001] NNTTA 107; 166 FLR 266

Representatives of the native title party:

Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Sharon McGuire, Meenangu Wajarri Aboriginal Corporation

Representative of the grantee party: Claire McGowan, Mining Access Legal

Representatives 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 E52/3903 (the proposed licence) to Westernx Pty Ltd/Trillbar Resources Pty Ltd (the grantee party), with a notification day of 24 March 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 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. On 3 May 2021, the Wajarri Yamatji #1 native title claimants (WC2004/010), as the native title party, lodged an objection against the inclusion of the expedited procedure statement, with the National Native Title Tribunal.  The Yamatji Marlpa Aboriginal Corporation (YMAC) lodged the objection on behalf of the Wajarri Yamatji #1 native title claimants.  In the covering email, YMAC requested any future contact include both a heritage service provider and YMAC. 

3. At that time, the proposed licence was wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claimants (WC2004/010). As at the time of this inquiry decision, the proposed licence falls within the Wajarri Yamatji 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.

4. The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry into the expedited procedure objection. 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

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.  A preliminary conference was held on 4 June 2021, at which the native title party advised a draft agreement had been sent to the grantee representative in May, however, it appeared due to a change in grantee representative, that the draft agreement had not yet been received, and so was to be re-sent.  

2. Under the directions issued, the State complied on 9 August 2021, copying in all party representatives. The native title party was due to provide their contentions and evidence on or before 30 August 2021, however, no submissions were provided. The Tribunal wrote to parties on 6 September 2021, stating (with emphasis in the original):

   This matter was notified on 10 May 2021, with directions. The State complied on 9 August 2021 as per directions. The native title party was due to comply on 30 August 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 13 September 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 the 13 September 2021, the matter will be referred back to Member Shurven for consideration of dismissal.

1. No response was received to the Tribunal’s 6 September 2021 email and on 20 September 2021, the Tribunal again wrote to all parties advising that ‘Given that no updates were provided, or reasons for non-compliance in response to my email below, the Member will now proceed to dismiss this matter’.  On 23 September 2021, a further email was sent to another email address for the native title party, to ensure the native title party had received all relevant materials to date, and also that they were aware of the pending dismissal due to lack of communication.  Again, no response was forthcoming.

Consideration of dismissal

1. 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…

2. 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.

3. In considering the dismissal, I adopt the principles outlined in Teelow v Page (at [13]) and 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.

4. I also note the explanatory memorandum to the Native Title Amendment Bill 1997 [No. 2] (at 27.10b), which highlights the purpose of s 148 is so 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 [Tribunal] directions’, and to ‘more efficiently and appropriately manage its processes’ (at 27.10c). 

5. Given this matter is 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 cannot delay compliance deadlines indefinitely, particularly in the absence of communication from the applicant. Having regard to all the facts and circumstances, I am satisfied this objection application should be dismissed.

Decision

1. The expedited procedure objection application in relation to exploration licence E52/3903 is dismissed under s 148(b) of the Act.

Ms Helen Shurven
Member
5 October 2021