Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Craig Alan Gall & Robert Edward Hull

[2019] NNTTA 103

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Craig Alan Gall & Robert Edward Hull [2019] NNTTA 103 (19 November 2019)

Application No: WO2019/0794

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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Craig Alan Gall & Robert Edward Hull

(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:	19 November 2019

Catchwords:

Native title – future act – proposed grant of prospecting 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 Matthew Clohessy

Representatives(s) of the Government party: Ms Bethany Conway, 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 prospecting licence P09/493 (licence) to Craig Alan Gall & Robert Edward Hull (grantee party), with a notification day of 5 June 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 4 September 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. Please contact Anthony going forward as YMAC is not involved with the negotiations.”

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

Relevant facts

1. On 13 September 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 and contentions on or before 28 October 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 1 November 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 8 November 2019. YMAC was also provided a copy of this correspondence on 4 November 2019.

4. No response was received from the native title party or grantee party however, on 8 November 2019, the State wrote to the Tribunal formally requesting dismissal of the objection under s 148(b) of the NTA.

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, as has been noted on many occasions, 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 has been the case with all 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 these 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 prospecting licence P09/493 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
19 November 2019