Raymond Ashwin & Others on behalf of Wutha v Kentor Minerals (WA) Pty Ltd

[2014] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin & Others on behalf of Wutha v Kentor Minerals (WA) Pty Ltd [2014]
NNTTA 46 (13 May 2014)

Application No:                 WO2013/0788

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

-and-

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

Raymond Ashwin & Ors on behalf of Wutha (WC1999/010)        (native title party)

-and-

The State of Western Australia   (Government party)

-and-

Kentor Minerals (WA) Pty Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Member Helen Shurven

Place:Perth

Date of dismissal:            9 May 2014

Date of reasons:              13 May 2014

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 Act1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page (2001) 166 FLR 266

Representative of the        Mr Stephen Catania, Mony de Kerloy

native title party:               

Representative of the        

Government party:           Mr Matthew Smith, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Jenny Johnson, Tenement Administration Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 10 April 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E51/1562 (‘the proposed licence’) to Kentor Minerals (WA) Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 17 July 2013, Raymond Ashwin & Ors on behalf of Wutha (WC1999/010), registered from 15 June 1999 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

1. At a status conference held on 12 March 2014 the representative for the grantee party, Ms Jenny Johnson, advised the Tribunal that the grantee party wished to proceed to inquiry on this matter. Directions were made requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 23 April 2014. The directions contained a statement that an objection may be dismissed pursuant to s148(b) of the Act if the objector failed within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

2. Neither contentions nor evidence were received from the native title party by the due date of 23 April 2014. No explanation has been provided for the failure to comply with the Tribunal’s directions, despite the native title party having been informed of the possible consequences of a failure to comply. 

Decision  

1. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act, which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application.

2. The native title party has known that the matter was proceeding to inquiry since 12 March 2014. It is the native title party’s responsibility to ensure that contentions and evidence are submitted in a timely manner and in accordance with the Tribunal’s directions. The native title party is represented by a legal practitioner, and on 6 May 2014 the Tribunal wrote to the native title party representative, and the other parties, to note that the Tribunal had not received contentions or evidence from the native title party by the due date of 23 April 2014. Parties were given until close of business on 8 May 2014 to respond as to why the matter should not be dismissed. As at the date of this determination, no reasons have been received.

3. In the circumstances, the native title party has been given sufficient opportunity to comply with the directions of the Tribunal and it would be unfair to prejudice the other parties with further delays.

Decision

1. As the native title party has failed to comply with directions made by the Tribunal on 12 March 2014, the objection application WO2013/0788 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Helen Shurven
Member