Raymond William Ashwin (dec) and Others on behalf of Wutha v Diversity Resources Pty Ltd

[2015] NNTTA 36

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Diversity Resources Pty Ltd [2015] NNTTA 36 (26 August 2015)

Application No:                  WO2014/0843

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-

Diversity Resources Pty Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              26 August 2015

Date of reasons:                26 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:  Mr Daniel Seivwright, Diversity Resources Pty Ltd               

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 27 August 2014, 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 E57/978-I to Diversity Resources Pty Ltd. The Wutha native title claim overlaps the licence by 51.17 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 native title claimants and Diversity Resources, because it will have minimal impact on native title (see s 237 of the Act).

3. On 28 October 2014, the Wutha native title claimants 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. 

Should the inqury proceed or should the matter be dismissed?

1. On 29 June 2015, Diversity Resources 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 native title claimants were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 10 August 2015. 

2. Neither contentions nor evidence were received from the Wutha native title claimants by that date.  On 11 August 2015, the State wrote to the Tribunal to confirm whether any submissions had been reached from Wutha. The Tribunal indicated no submissions had been received, and on 17 August 2015 the State wrote to the Tribunal and the Wutha representative requesting the objection be dismissed because Wutha had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 17 August 2015, the Tribunal wrote to the Wutha People and Diversity Resources, asking them to respond to the State's request to dismiss. No response was received.

4. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, which I adopt in this inquiry. In particular, I must proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

5. In the circumstances, the Wutha native title claimants have been given sufficient opportunity to comply with directions I set, and it would be unfair to prejudice the other parties with further delays. On 17 August the Wutha representative had been advised ‘the objection may be dismissed forthwith in the event of native title party non-compliance’. 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 E57/978-I is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member