Wajarri Yamatji Aboriginal Corporation v Simon John Lawes
[2022] NNTTA 9
•10 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamatji Aboriginal Corporation v Simon John Lawes and Another [2022] NNTTA 9 (10 February 2022)
Application No: | WO2021/1464 |
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 (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: | 10 February 2022 |
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, 109, 148, 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) David Stock v Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia) Teelow v Page [2001] NNTTA 107; 166 FLR 266 |
| Representatives of the native title party: | Sharon McGuire and Katrina Thomas, Wajarri Yamaji Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Simon John Lawes |
| Representatives of the Government party: | Bethany Conway and 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 P20/2442 (the proposed licence) to Simon John Lawes (the grantee party), with a notification date of 28 July 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 this proposed 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 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 Yamaji Aboriginal Corporation RNTBC holds the determined native title in trust for the Wajarri Yamaji common law holders (the native title party). Yamatji Marlpa Aboriginal Corporation (YMAC) lodged the objection on behalf of the native title party. In the 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 this inquiry. 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
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.
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 17 January 2022, allowing for an additional period because of the festive break. However, no submissions were provided. At an early stage in the inquiry Mr Lawes indicated his preferred pathway for this matter would be through inquiry, and so it was apparent there was no prospect of parties reaching agreement. That information was copied to all parties by Mr Lawes, and as such parties were on notice of the importance of the compliance directions.
The Tribunal wrote to parties on 28 January 2022, 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 Friday 4 February 2022 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 Friday 4 February 2022, 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 Friday 4 February 2022, and on Monday 7 February the Tribunal wrote to all parties, noting: ‘…in the absence of any response from the native title party the Member is now proceeding to dismiss the matter’.
This objection 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). Section 148 of the Act deals with the failure to proceed in a reasonable time. In the Explanatory Memorandum for the Native Title Amendment Bill 1997 [No. 2], the purpose of s 148 was clearly outlined (emphasis in original):
27.10bReplacement item 40 inserts new section 148 which states 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 Tribunal directions.
27.10cThese limited provisions will assist the Tribunal to more efficiently and appropriately manage its processes…
Consideration of dismissal
In considering this dismissal, I have had regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). I am required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. Once an objection application is made, it is incumbent on the objector to proceed with the application, and to communicate with the Tribunal and all parties about the application. This principle has been reiterated many times in Tribunal decisions. For example, in David Stock v Giralia, the Tribunal outlined (at page 6):
It is fair to assume that in the period between the notification date specified in the s 29 notice and the lodging of the objection the native title party would have carried out such enquiries and investigations as were necessary to justify its grounds of objection. In my opinion, save in exceptional circumstances, to proceed with its objection within a reasonable time within the meaning of s 148(b), the objector should commence gathering the evidence to support the grounds alleged at the latest within a reasonable time after lodging the objection.
Wajarri Yamaji have had the opportunity to present their materials in this matter, and having not done so, or communicated with the Tribunal about why they have not done so, I consider this objection application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure. As noted above (at [7]), information in the notification email highlights the timely nature of the process and the consequences should the objection not be progressed in a timely manner.
Decision
The expedited procedure objection application in relation to P20/2442 is dismissed under s 148(b) of the Act.
Ms Helen Shurven
Member
10 February 2022
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