Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Boadicea Resources Ltd

[2019] NNTTA 87

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Boadicea Resources Ltd [2019] NNTTA 87 (18 October 2019)

Application No: WO2019/0426

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

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 (WC2004/010)

(native title party)

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Boadicea Resources Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms Nerida Cooley, Member
Place:	Brisbane
Date:	18 October 2019

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

Cases:

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Peter Romeo Gianni and Another [2019] NNTTA 68 (Wajarri Yamatji v Gianni)

Teelow v Page [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Representatives(s) of the native title party:

Mr Anthony Dann

Representative(s) of the grantee party: Mr Clarke Dudley  

Representatives(s) of the Government party: Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

Background

1. In accordance with s 29 of the Native Title Act 1993 (Cth) (NTA), the State of Western Australia (State) gave notice of its intention to grant exploration licence E09/2350 (licence) to Boadicea Resources Ltd (grantee party), with a notification day of 8 May 2019.

2. The s 29 notice included a statement that the State considers the grant of the licence to be an act attracting the expedited procedure under the NTA (expedited procedure statement). If the expedited procedure applies, then the State may grant the licence without compliance with the negotiation procedure under s 31 of the NTA.

3. The area of the proposed licence is located wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010).  On 16 May 2019, the registered native title claimant for the Wajarri Yamatji #1 claim (native title party) lodged an objection with the Tribunal against the inclusion of the expedited procedure statement.  The objection was lodged by Yamatji Marlpa Aboriginal Corporation (YMAC) on behalf of the native title party.  In the covering email, YMAC stated “Anthony Dann is the Heritage Service Provider for this matter.  Please contact Anthony going forward as YMAC is not involved in the negotiation.”

4. The native title party’s objection application was lodged within the timeframe required under s 32(3) of the NTA and therefore, under s 32(4) of the NTA, the Tribunal is required to determine whether the grant of the licence is an act attracting the expedited procedure.

5. The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in this matter.

Relevant facts

1. On 11 June 2019, I made directions requiring all parties to provide contentions and evidence for the conduct of the inquiry.  The directions were communicated to all parties by email, including Mr Dann as representative for the native title party.

2. The native title party was directed to provide its evidence contentions on or before 30 September 2019.  The native title party did not provide any material by the due date, and has not made any request for an extension of time to do so.

3. On 3 October 2019, the Tribunal wrote to all parties advising that the objection was at risk of dismissal under s 148(b) of the NTA and parties were invited to provide comments by no later than close of business on 9 October 2019. YMAC was also copied into this correspondence.

4. On 8 October 2019, the grantee party’s representative, Mr Clarke Dudley, wrote to the Tribunal advising that the grantee party had no comments and wished to leave the matter to me to decide. No response was received from the native title party or the State.

Consideration of dismissal

1. The Tribunal has a broad discretion, under s 148(b) of the NTA, 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 by the Tribunal. However, dismissing an application is a matter the Tribunal takes seriously because of the consequences for the native title party.

2. In considering the dismissal of this matter, I have had regard to the principles set out in the Tribunal’s decision in Teelow v Page (at [13]). Particularly relevant to this case is the native title party’s recent history of non-compliance with Tribunal directions (as discussed in my decision in Wajarri Yamatji v Gianni).

3. As was the case with all of the previous Wajarri Yamatji dismissal decisions made by me, the native title party has not given any reason for its non-compliance with the directions of the Tribunal, nor sought any extension of time.  

4. In the circumstances, I am satisfied that the native title party has had sufficient opportunity to comply with my directions, or request an extension of time.  Having regard to all the facts and circumstances of this matter, I am satisfied that the 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.

Decision

1. The expedited procedure objection application in relation to exploration licence E09/2350 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley

Member
18 October 2019