Yinhawangka Aboriginal Corporation RNTBC v Timothy George King

[2025] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Yinhawangka Aboriginal Corporation RNTBC v Timothy George King and Others [2025] NNTTA 7 (28 April 2025)

Application(s) No: WO2024/0113, WO2024/0263

IN THE MATTER of an inquiry into expedited procedure objection applications

Yinhawangka Aboriginal Corporation RNTBC (WCD2017/003)

(native title party/YAC)

- and -

Timothy George King and Andrew Marra

(grantees)

- and -

State of Western Australia

(State)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	Member Lisa Eaton
Place:	Perth
Date:	28 April 2025

Catchwords:

Native title – future acts – proposed grant of exploration licences – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 109(1), 148(b) (the Act)

Cases:

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL [2000] NNTTA 333 (David Stock v Giralia)

Dorrie Prowse & Ors (Yulluna People)/Queensland/Superior Resources Limited, [2010] NNTTA 24 (Yulluna People v Queensland)

Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 (Yinhawangka v State of Western Australia)

MICHAEL DANIEL TEELOW/MICHAEL PAGE/NORTHERN TERRITORY [2001] NNTTA 107; (2001) 166 FLR 266 (TEELOW V PAGE)

Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People; Gordon Lansen on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People; Les Hogan on behalf of the Garawa and Gurdanji People/Northern Territory/Ashton Mining Ltd; North Mining Ltd [2002] NNTTA 48; (2002) 169 FLR 103 (Dixon v Northern Territory)

Representative of the native title party:

Clare Duncanson, Yamaji Marlpa Aboriginal Corporation

Representative of the grantee parties: Timothy King

Representative of the Government party: Andrea Pearce, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DISMISSAL

1. This is a decision made under s 148(b) of the Native Title Act 1993 (Cth), which empowers the National Native Title Tribunal to dismiss an objection application at any stage of the inquiry in circumstances where the applicant fails within a reasonable time to proceed with the application or comply with a direction of the Tribunal.

2. The State gave public notification of the proposed grant of a prospecting and a exploration licence to the grantees,[1] and included a statement that it considers the grants attracts the expedited procedure.[2] The effect of giving such a notice is that unless a native title party lodges an objection, the act may be done without first requiring all parties to negotiate in good faith.[3]

   [1] E 47/5049 and P 47/2048.

   [2] The Act s 29.

   [3] Ibid s 31(1).

3. The proposed licences fall wholly on land subject to a determination of native title made by the Federal Court of Australia in the Yinhawangka People Part A and Part B Determination.[4] As set out in the determination the Yinhawangka Aboriginal Corporation RNTBC holds native title on trust for the Yinhawangka People. As the relevant native title party in relation to land and waters that will be affected by the grants,[5] YAC lodged objection applications to the State’s inclusion of the expedited procedure statement.[6] As a result, unless the applications are withdrawn or dismissed, the Tribunal is required to determine whether the grant of the proposed licences are acts attracting the expedited procedure.[7]

   [4] Yinhawangka v State of Western Australia.

   [5] The Act s 30.

   [6] Lodged on the 12 February 2024 and the 27 March 2024.

   [7] The Act s 32(4).

Background

1. I was appointed to constitute the Tribunal for the purposes of this inquiry. I initially made directions requiring all parties to provide contentions and evidence in January 2025. These directions were subsequently amended on 14 March 2024 at the request of YAC to allow further time to ensure appropriate consultation with knowledge holders and provide evidence for the inquiry. In accordance with those directions, YAC’s contentions and evidence were due on or before 4 April 2025.

2. On 4 April 2025, the YAC representative emailed the Tribunal and relevantly advised that the native title party will not be providing submissions or evidence in respect of its applications and noted that YAC and the Yinhawangka People do not consent to any exploration and prospecting activities within the area of land subject to the applications.

3. Whilst noting YAC’s comments, I must deal with the applications before me according to law. It is incumbent upon a party making an application to progress that application in a timely and reasonable manner. In this matter, the native title party advised it will not be complying with a direction of the Tribunal and will not be proceeding with filing evidence in respect of its applications.

4. On 15 April 2025, the Tribunal emailed all parties noting that the native title party had failed to comply and that the objections were now at risk of dismissal under s 148(b) of the Act. YAC responded on the 17 April 2025 to confirm that they did not have instructions to withdraw the objections. No other response was received.

Consideration of dismissal

1. In considering this dismissal, I have had regard to the applicable principles set out in Teelow v Page.[8] 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 progress the application and to communicate with the Tribunal and all parties.[9] The Tribunal must also ‘pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.’[10]

   [8] Teelow v Page [13]. 

   [9] Stock v Giralia, 6-7.

   [10] The Act s 109(1).

2. Under s 148(b) the Tribunal may dismiss an objection application at any stage of the inquiry in circumstances where the applicant 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, it is not an action to be taken lightly.

3. In this matter, YAC have failed to progress the objection applications within a reasonable period despite being afforded sufficient opportunity. They have failed to comply with directions set by the Tribunal.

4. The Tribunal has previously held that where an applicant expresses a clear intention to not comply with directions, this is a sufficient basis for dismissal under 148(b).[11]

   [11] Yulluna People v Queensland [7]–[8], citing Dixon v Northern Territory [12].

5. Having regard to all of the facts and circumstances, I am satisfied that the objection applications should be dismissed.

DECISION

1. The expedited procedure objection applications in relation to E 47/5049 and P 47/2048 are dismissed pursuant to s 148(b) of the Act.

Ms Lisa Eaton
Member
28 April 2025