Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Desert Metals Limited and Another

[2019] NNTTA 115

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Desert Metals Limited and Another  [2019] NNTTA 115 (3 December 2019)

Application No: WO2019/0253; WO2019/0254

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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Desert Metals Limited

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:

Ms Nerida Cooley, Member

Place:

Brisbane

Date:

3 December 2019

Catchwords:

Native title – future act – proposed grants of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications dismissed 

Legislation:

Native Title Act 1993 (Cth) ss 29, 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)

Representative of the native title party:

Mr Anthony Dann

Representative of the grantee party: Ms Claire Riessen, Mining Access Legal

Representative of the Government party: Mr Matthew Smith and 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 exploration licences E09/2330 and E09/2331 (licences) to Desert Metals Limited (grantee party), with a notification day of 16 January 2019.

2. The s 29 notice included a statement that the State considers the grants to be acts attracting the expedited procedure under the NTA (expedited procedure statement).  

3. The proposed licences are located wholly within the area of the native title determination application made by the Wajarri Yamatji #1 claim group (WC2004/010). On 4 April 2019, Yamatji Marlpa Aboriginal Corporation (YMAC) lodged objections with the Tribunal against the inclusion of the expedited procedure statement on behalf of the registered native title claimant for the Wajarri Yamatji #1 claim (native title party).  In the covering email, YMAC stated “Please note that Anthony Dann is the Heritage Service provider for these matters. If you could contact Anthony going forward that would be much appreciated. YMAC is not involved in the negotiations.”

4. The President of the Tribunal directed me to constitute the Tribunal for the purposes of the inquiry in these matters.

Relevant facts

1. On 19 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, and were also provided to YMAC.

2. The native title party was directed to provide its evidence and contentions on or before 24 October 2019. The native title party did not comply with that direction, and made no request for an extension of time to do so.

3. On 4 November 2019, the Tribunal wrote to all parties advising that these matters were 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 11 November 2019. YMAC was also copied into this correspondence.

4. On 5 November 2019, the State wrote to the Tribunal formally requesting dismissal of the objections pursuant to s 148(b). On 8 November 2019, the grantee party’s representative wrote to the Tribunal and advised of its support for the dismissal of the objection applications. No response was received from the native title party.

Consideration of dismissal

1. The Tribunal has a broad discretion, under s 148(b) of the NTA, to dismiss an objection application 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.

2. In considering the dismissal of these matters, 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 Wajarri Yamatji v Gianni).

3. Once again, the native title party has not provided a reason for its non-compliance with the Tribunal’s directions, nor sought any extension of time, despite having sufficient opportunity to do so. 

4. Having regard to all the facts and circumstances of these matters, I am satisfied that the native title party’s objection applications should be dismissed.  Accordingly, it is not necessary for me to determine whether the grants of the licences are acts attracting the expedited procedure.

Decision

1. The expedited procedure objection applications in relation to exploration licences E09/2330 and E09/2331 are dismissed pursuant to s 148(b) of the NTA.

Ms Nerida Cooley
Member
3 December 2019