Watarra Aboriginal Corporation RNTBC v Robbie Leonard Utterson

[2025] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

Watarra Aboriginal Corporation RNTBC v Robbie Leonard Utterson and Another [2025] NNTTA 11 (16 May 2025)

Application No: WO2024/0846

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

- and -

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

Watarra Aboriginal Corporation RNTBC (WCD2022/002)

(native title party)

- and -

Robbie Leonard Utterson

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Mr Glen Kelly
Place:	Perth
Date:	16 May 2025

Catchwords:	Native title – future act – proposed grant of special prospecting licence – expedited procedure objection application – failure to comply with directions – s 148(b) – objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)
Cases:	Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)
Representative of the native title party:	Rhianne Gerrard, Native Title Services Goldfields

Representative of the grantee party: Robbie Utterson

Representatives of the Government party: Michelle Rogers and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 23 August 2024, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant special prospecting licence P 37/9814-S to Robbie Leonard Utterson. The s 29 notice included a statement that the State considers the grant of the proposed licence to be an act attracting the expedited procedure under the Native Title Act (expedited procedure statement).

2. If the expedited procedure applies, the State may grant the proposed licence without requiring parties to enter the right to negotiate procedure per s 31 of the Native Title Act.

3. The proposed licence is located approximately 60 km in an easterly direction from Leinster. The proposed licence sits wholly within the Darlot native title determination area, held in trust by the Watarra Aboriginal Corporation RNTBC as the registered native title body corporate (WCD2022/002, WAD142/2018).

4. On 17 October 2024, Watarra lodged an objection application with the National Native Title Tribunal in response to the State's assertion that the expedited procedure applies to the grant of the licence. The objection application was lodged within the timeframe outlined in s 32(3) of the Native Title Act and therefore, under s 32(4), the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure.

Relevant Facts

1. Under a delegation from the President of the Tribunal, I was appointed to constitute the Tribunal for the purposes of the inquiry in this matter.

2. On 19 February 2025, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry. Watarra was directed to provide its contentions and evidence by 9 April 2025. On the date of compliance, the Tribunal did not receive any contentions or evidence from Watarra.

3. On 16 April 2025, the Tribunal emailed all parties, noting that Watarra had failed to comply with directions and that the objection was now at risk of dismissal. Parties were provided until close of business 23 April 2025 to make comments. In response, Watarra sought an extension to 30 April 2025 to submit its contentions and evidence. After seeking and considering the views of the grantee party and the State, I granted this extension and made amended directions to this effect on 17 April 2025.

4. On 30 April 2025, the Tribunal did not receive any contentions or evidence from Watarra. The Tribunal sent an email to all parties on 7 May 2025 noting that Watarra had failed to comply with directions and that the objection application was again at risk of dismissal. Parties were provided until close of business 14 May 2025 to provide any comments. No response from Watarra was received. 

Consideration of Dismissal

1. Pursuant to s 148(b) of the Native Title Act, the Tribunal may 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 objection application or to comply with a direction of the Tribunal. While the Tribunal has broad discretion to dismiss an objection application, doing so has significant consequences for the native title party and is not an action taken lightly.

2. The nature of the expedited procedure and the principles relevant to the consideration of dismissal for failure to comply with directions are set out in the Tribunal's decision in Teelow v Page ([13]). I have applied those principles in my consideration of this matter.

3. On this occasion, it is my view that Watarra has been afforded sufficient opportunity to progress the objection application but have failed to do so within a reasonable time. The Tribunal granted an extension to enable Watarra to provide evidence into the inquiry however Watarra has failed to comply with directions set by the Tribunal. 

4. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.

Determination

1. The expedited procedure objection application in relation to special prospecting licence P 37/9814-S is dismissed under s 148(b) of the Native Title Act.

Mr Glen Kelly
Member
16 May 2025