Raymond William Ashwin (dec) and Others on behalf of Wutha v Breaker Resources Nl

[2015] NNTTA 32

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Breaker Resources NL [2015] NNTTA 32 (18 August 2015)

Application Nos:                WO2015/0312

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Raymond William Ashwin (dec) and Others
on behalf of Wutha (WC1999/010)   (native title party)

-and-

The State of Western Australia    (Government party)

-and-

Breaker Resources NL  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              18 August 2015

Date of reasons:                18 August 2015

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 ('Teelow v Page')

Representative of the        

native title party:              Mr Ron Harrington-Smith

Representative of the        

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

Representative of the

grantee party:  Ms Michelle Simson, Breaker Resources NL

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 28 January 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 E38/3019 to Breaker Resources NL. The Wutha People native title claim overlaps the licence by 61.16 per cent.

2. The State has included an expedited procedure clause in the s 29 notice. That is, they say the grant of this licence can be made expeditiously, without the normal negotiation between the Wutha People and Breaker Resources NL.

3. On 2 April 2015, the Wutha People 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 inqury proceed or should the matter be dismissed?

1. On 16 June 2015, Breaker Resources NL advised the Tribunal they wanted this matter to proceed to an inquiry.  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 Wutha People were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 28 July 2015. 

2. Neither contentions nor evidence were received from the Wutha People by that date. On 29 July 2015, the State wrote to the Tribunal, and copied in the representatives of Breaker Resources NL and the Wutha People, requesting the objection be dismissed because the Wutha People had failed, within a reasonable time, to proceed with the objection or comply with a Tribunal direction.

3. On 4 August 2015, the Tribunal wrote to the Wutha People and to Breaker Resources NL, asking them to respond to the State's request to dismiss. On 4 August 2015, the Wutha People representative wrote to the Tribunal but did not give any reasons as to why the dismissal should not go ahead. On the same day the Tribunal re-sent a copy of the directions in this matter, and a copy of the State’s evidence which had been sent to all parties in 30 June 2015, to the Wuthe People representative.

4. On 11 August 2015, Breaker Resources NL wrote to the Tribunal, supporting the request to dismiss on the basis that the Wutha People had not complied with directions. A copy of Breaker Resources NL contentions in compliance with the directions was also attached, and copied to all parties. 

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

6. As at the date of this determination, no response has been received from the Wutha People 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.

7. In the circumstances, the Wutha People have been given sufficient opportunity to comply with directions I set, and it would be unfair to prejudice the other parties with further delays.  I do not need to answer the question of whether the licences can be granted in an expedited way because I have concluded the objection should be dismissed.

Decision

1. The objection application against exploration licence E38/3019 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member