Yinhawangka Aboriginal Corporation RNTBC v Aquila Steel Pty Ltd & Anors
[2024] NNTTA 25
•11 April 2024
NATIONAL NATIVE TITLE TRIBUNAL
Yinhawangka Aboriginal Corporation RNTBC v Aquila Steel Pty Ltd & Anors [2024] NNTTA 25 (11 April 2024)
Application No: | WO2022/0591 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Yinhawangka Aboriginal Corporation RNTBC (WCD2017/003)
(native title party)
- and -
Aquila Steel Pty Ltd and AMCI (IO) Pty Ltd
(grantee parties)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 11 April 2024 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – directions extended multiple times - failure to comply with directions – s 148(b) – objection application dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b) |
Cases: | David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTA 333 (Stock v Giralia) Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page) |
| Representatives(s) of the native title party: | Alex Ihanimo and Pauline Gartlen, Yamatji Marlpa Aboriginal Corporation |
| Representative(s) of the grantee parties: | Katherine Perincek and Michelle Alexander, DLA Piper Australia |
| Representatives(s) of the Government party: | Andrea Wyles and David Crabtree, Department of Energy, Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
On 29 April 2022, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E 47/4637 to grantee parties Aquila Steel Pty Ltd and ACMI (IO) Pty Ltd. The s 29 notice included a statement that the State considers the grant of the proposed licence as an act attracting the expedited procedure under the Native Title Act (expedited procedure statement).
If the expedited procedure applies, the State may grant the proposed licence without requiring parties to enter into the right to negotiate procedure per s 31 of the Native Title Act.
The proposed licence is located approximately 40 km northwest of Paraburdoo and covers 34.69 km². The proposed licence sits wholly within the native title determination area of Yinhawangka People Part A and B (WCD2017/003).
On 4 May 2022, the legal representative for Yinhawangka Aboriginal Corporation RNTBC lodged an objection 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 proposed licence is an act attracting the expedited procedure.
Relevant Facts
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.
Directions in this matter were vacated, reinstated and extended multiple times over the course of approximately two years.
During the first six months of the objection, parties appeared to be actively negotiating and in November 2022, advised the Tribunal they had reached an agreement in principle and were awaiting signatures for execution. As a result, I referred the matter to the Tribunal’s Settlement List in which parties made ten appearances over a period of eight months. In this time, parties did not execute an agreement and negotiations appeared to stall. The objection was referred back to me in July 2023.
To cater for the internal processes of Yinhawangka, I extended directions a number of times at their request to allow for negotiations and agreement finalisation. This, however, did not occur. On 8 March 2024, I extended directions for a fifth time. Per those directions, Yinhawangka were directed to provide their contentions and evidence on or before 22 March 2024. It was noted to parties that this would be the final extension to directions and if contentions and evidence were not received from Yinhawangka by this date, the matter would proceed to dismissal. On the date of compliance, the Tribunal did not receive any contentions and evidence from Yinhawangka.
On 28 March 2024, the Tribunal emailed all parties, noting that Yinhawangka had failed to comply and advised per the notice provided to parties on 8 March 2024, the matter would proceed to dismissal. No party provided a response to the notice.
Consideration of Dismissal
Per 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.
The nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application 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.
On this occasion, it is my view that Yinhawangka has been afforded sufficient opportunity to progress this objection application but have failed to do so within a reasonable time. Yinhawangka have failed to comply with directions set by the Tribunal after multiple extensions and have not provided reasoning for their non-compliance.
Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed.
Determination
The expedited procedure objection application in relation to E 47/4637 is dismissed pursuant to s 148(b) of the Native Title Act.
Mr Glen Kelly
Member
11 April 2024
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