Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Metals of Australia Pty Ltd & Anor

[2019] NNTTA 114

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Metals of Australia Pty Ltd and Another [2019] NNTTA 114 (3 December 2019)

Application No: WO2019/0790

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

- and -

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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Metals of Australia Pty 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:

3 December 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, 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: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

Representative 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 E09/2353 (licence) to Metals of Australia Pty Ltd, with a notification day of 19 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).

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 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 11 November 2019.  However, it did not comply, and made no request for an extension of time to do so.

3. On 18 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 25 November 2019. YMAC was also copied into this correspondence. The Tribunal did not receive comments from any party.

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.

2. In considering the dismissal, I have had regard to the principles set out in the Tribunal’s decision in Teelow v Page (at [13]) and taken account of the native title party’s recent history of non-compliance with the Tribunal’s directions (see Wajarri Yamatji v Gianni).

3. In this case, 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, despite having sufficient opportunity to do so. 

4. 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 E09/2353 is dismissed under s 148(b) of the NTA.

Ms Nerida Cooley
Member
3 December 2019