Leedham Papertalk & Others on behalf Mullewa Wadjari v XServ Pty Ltd and Another

[2016] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf Mullewa Wadjari v XServ Pty Ltd and Another [2016] NNTTA 43 (10 October 2016)

Application No:                  WO2016/0147

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Leedham Papertalk & Ors on behalf Mullewa Wadjari
(WC1996/093)  (native title party)

-and-

The State of Western Australia    (Government party)

-and-

XServ Pty Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              10 October 2016

Date of reasons:                10 October 2016

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:Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)

Representative of the        

native title party:              Mr Leedham Papertalk

Representative of the        

Government party:            Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party:  Mr Dermot Ryan, Enterprise Metals Limited

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 18 November 2015, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E59/2139-I to XServ Pty Ltd (XServ) without requiring XServ or the State to negotiate with the Mullewa Wadjari native title claim group (the Mullewa Wadjari claim group). The Mullewa Wadjari native title claim WC1996/093 overlaps 6.52 per cent of the area of the proposed licence.

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without such negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Mullewa Wadjari claim group, the State, and XServ.

3. On 18 March 2016, the Mullewa Wadjari claim group lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 22 August 2016, I made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted to the grant. The Mullewa Wadjari claim group were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 28 September 2016. 

2. Neither contentions nor evidence were received from the Mullewa Wadjari claim group by 28 September 2016. On 29 September 2016, the State wrote to the Mullewa Wadjari claim group’s representative, XServ’s representative and the Tribunal, requesting the objection be dismissed because the Mullewa Wadjari claim group had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 29 September 2016, the Tribunal wrote to the Mullewa Wadjari claim group’s representative and XServ’s representative, asking them to respond to the State’s request to dismiss the objection. Parties were given until 6 October 2016 to respond. No response was received from the Mullewa Wadjari claim group or XServ.

4. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

5. As at the date of this determination, no response has been received from the Mullewa Wadjari claim group as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non compliance.

6. In the circumstances, the Mullewa Wadjari claim group have been given sufficient opportunity to comply with directions set by the Tribunal, and it would be unfair to prejudice the other parties with further delays. I do not need to answer the question of whether the licence can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E59/2139-I is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
10 October 2016