Yinhawangka Aboriginal Corporation RNTBC v Holcim (Australia) Pty Ltd

[2022] NNTTA 73

NATIONAL NATIVE TITLE TRIBUNAL

Yinhawangka Aboriginal Corporation RNTBC v Holcim (Australia) Pty Ltd & Another [2022] NNTTA 73 (13 December 2022)

Application No: WO2021/1855

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

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

Yinhawangka Aboriginal Corporation RNTBC (WCD2017/003)

(native title party)

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Holcim (Australia) Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	13 December 2022

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – expedited procedure objection application dismissed
Legislation:	Native Title Act 1993 (Cth) ss 32, 148
Cases:	David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (‘Stock v Giralia’)
Representative of the native title party:	Alex Ihanimo, Yamatji Marlpa Aboriginal Corporation

Representative of the grantee party: Ettienne van Tonder, Austwide Legal Pty Ltd

Representative of the Government party: Jake Lincoln, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. Holcim (Australia) Pty Ltd has applied for the grant of an exploration licence in the Pilbara region of Western Australia. The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth).

2. Yinhawangka Aboriginal Corporation RNTBC, which holds native title in relation to the majority of the licence area, objects to the application of the expedited procedure. The Tribunal is therefore required to determine whether the expedited procedure applies: s 32(4) Native Title Act.

3. Yinhawangka has not complied with the Tribunal’s directions, despite being afforded a reasonable time in which to do so. For the reasons that follow, I have dismissed Yinhawangka’s objection application.

What steps has Yinhawangka taken to comply with the Tribunal’s directions?

1. Yinhawangka’s objection was lodged on 14 December 2021. On 20 December 2021, I made directions requiring all parties to provide contentions and evidence for the conduct of the Tribunal’s inquiry into the application of the expedited procedure to the grant of the licence. In accordance with those directions, Yinhawangka’s material was due to be provided on or before 17 May 2022.

2. At the preliminary conference held on 13 January 2022, the parties advised there was an existing agreement between them and they were hopeful an agreement could be resolved quickly. However, between the preliminary conference and May 2022, Yinhawangka experienced delays in obtaining instructions from its heritage committee with respect to sites in the area. It was not until 2 May 2022 that Yinhawangka was able to provide a draft heritage agreement to Holcim and I extended directions by four weeks to allow time for Holcim to review that draft.

3. At a conference on 9 June 2022, Holcim indicated it had received advice from Yinhawangka to the effect that the whole of the licence area is an exclusion zone and it would therefore need to consider its position with respect to the licence. At the same time, Yinhawangka advised it was taking steps to prepare cultural mapping of the exclusion zones. Directions were vacated to allow those steps to occur, but with the expectation that there would be a clear way forward by the end of June.

4. There were further delays between June and August while Yinhawangka finalised its mapping. However, by the time of a conference on 25 August 2022, Holcim was reviewing a revised agreement and had been provided with details of the exclusion zones. Parties were then put on notice that directions would likely be reinstated at the next conference.

5. Holcim provided its response to Yinhawangka on 15 September 2022 and, at a conference on 29 September 2022, indicated that, from its perspective, there were few outstanding issues. Directions were then reinstated and Yinhawangka was given six weeks to comply.

6. Yinhawangka’s representative did not appear at the final conference on 20 October 2022. Holcim noted it was still awaiting a response to its proposed amended agreement sent on 15 September 2022 but understood Yinhawangka was seeking additional time for its review. Yinhawangka’s date for compliance was further extended by four weeks to align this matter with an overlapping objection application but, at the time the Tribunal provided the amended directions, it was made clear to Yinhawangka that it was expected to comply by the new date (8 December 2022) and that, if it did not, or the matter was not otherwise resolved by that time, I would consider the dismissal of the objection application, without further reverting to parties.

7. That date has since passed and there has been no further communication from Yinhawangka and no material provided in compliance with the Tribunal’s directions.

The objection is dismissed

1. The Tribunal has a broad discretion 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 of the Tribunal: s 148(b) Native Title Act. The Tribunal has observed on many occasions that it is for the native title party to take steps to progress an objection application within a reasonable time if it wishes to pursue it: Stock v Giralia (at page 7).

2. On 14 December, this matter will have been on foot for a year. Yinhawangka has had ample opportunity to comply with the Tribunal’s directions, yet there is nothing to indicate it has taken any steps to do so. Yinhawangka appears to have focused all of its efforts on reaching an agreement with Holcim.

3. No doubt proceeding by way of an agreement is a desirable outcome for all parties and it remains open to Yinhawangka and Holcim to continue their efforts towards reaching agreement. However, the objection application cannot remain on foot indefinitely, without any steps being taken to progress the matter towards a determination.

4. Having regard to all the facts and circumstances, I am satisfied that Yinhawangka’s 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.

Determination

1. The expedited procedure objection application in relation to exploration licence E47/4588 is dismissed under s 148(b) of the Native Title Act.

Ms Nerida Cooley
Member
13 December 2022