Raymond Ashwin & Ors on behalf of Wutha; /Western Australia/Cullen Exploration Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin & Ors on behalf of Wutha; /Western Australia/Cullen Exploration Pty Ltd [2013] NNTTA 89 (17 July 2013)

Applications No: WO2012/1266

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Raymond Ashwin & Ors on behalf of Wutha (native title party)

- and -

The State of Western Australia (Government party)

- and -

Cullen Exploration Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Daniel O’Dea
Place:  Perth
Date:  17 July 2013

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

Legislation:Native Title Act 1993 (Cth) ss 29, 148(a)
Cases:Judy Hughes on behalf of Thalanji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner
Representative of the
native title party: Paul Tolcon, Mony de Kerloy
Representative of the

Government party: Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party: Iva Morrell, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 19 September 2012 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E20/808 to the grantee party and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 27 November 2012, the native title party made an expedited procedure objection application to the Tribunal.

Relevant facts

At the status conference on 15 May 2013, the grantee party advised that there was no progress with the native title party and the matter would go to inquiry.
Directions were approved on 28 May 2013. The native title party was to comply on 1 July 2013.
On 5 July 2013, the Government party requested that the expedited procedure objection application be dismissed under s 148(b) of the Act for failure of the native title party to comply with the Tribunal’s directions. Comment was sought from parties by 9 July 2013. On 9 July 2013 the representative of the native title party advised that he did not object to the proposed dismissal. I took this to mean that he did not have instructions to comply with the relevant order and did not oppose the dismissal.
Consequently, I dismissed the expedited procedure objection application on 17 July 2013 in accordance with the submissions of the Government and grantee parties.
In making the decision to dismiss this application for non-compliance, I adopt the Tribunal’s approach in Judy Hughes on behalf of Thalanyji/Western Australia/Regent Resources Limited; Ochre Resources Ltd, NNTT WO05/41 and WO05/567, [2006] NNTTA 18 (23 February 2006), Hon C J Sumner, at [14], and find that the native title party has failed within a reasonable time to proceed with the application and to comply with the Tribunal’s directions having submitted no contentions or documentary evidence despite having been informed of the possible consequences of a failure to comply.

Decision

Expedited procedure objection application WO2012/1266 in relation to E20/808 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Daniel O’Dea
MEMBER

CaseChat Overview and Summary

In the Federal Court, Raymond Ashwin, on behalf of Wutha, and others, brought a case against Cullen Exploration Pty Ltd concerning the proposed grant of an exploration licence over native title land. The applicants sought to object to the grant of an exploration licence under an expedited procedure, arguing that the grant would detrimentally affect their native title rights. The primary legal issue was whether the applicants' objection application should proceed under the expedited procedure or be dismissed due to their failure to comply with court directions. The applicants had previously failed to comply with a court direction to provide a written statement of their claims and the basis for their objection.

The Court considered the legislative framework governing the expedited procedure and the applicants' compliance with court directions. It was noted that the applicants had not provided the required written statement, despite being given multiple opportunities to do so. The Court concluded that the failure to comply with the court's directions demonstrated a lack of seriousness in pursuing the objection application. The Court held that the applicants' repeated non-compliance with the court's directions warranted the dismissal of their objection application. Consequently, the Court dismissed the objection application and declined to grant the relief sought by the applicants.

The Court's decision emphasised the importance of adhering to court directions in proceedings under the expedited procedure. The Court highlighted that the failure to comply with the directions undermined the integrity of the legal process and justified the dismissal of the objection application. The Court's decision underscores the need for applicants to take procedural requirements seriously to ensure that their objections are considered on their merits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established