Raymond William Ashwin (dec) and Others on behalf of Wutha v Iluka Resources Limited

[2015] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Iluka Resources Limited [2015] NNTTA 43 (10 September 2015)

Application No:                  WO2015/0466

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

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

-and-

The State of Western Australia    (Government party)

-and-

Iluka Resources Limited  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              10 September 2015

Date of reasons:                10 September 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 Sally Carlin

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 6 May 2015, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E38/3030 to Iluka Resources Limited. The Wutha native title claim overlaps the licence by 100 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 negotiations required under s 31 of the Act between the Wutha native title claimants and Iluka Resources.

3. On 15 May 2015, 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 26 June 2015, Iluka Resources requested dates be set for the matter to proceed to an inquiry.  On 30 June 2015, 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 7 August 2015. Parties were asked to note that failure to comply with a direction may lead to dismissal of the objection.

2. Neither contentions nor evidence were received from Wutha by that date.  On 10 August 2015, Iluka Resources wrote to the Tribunal, and copied in the Wutha native title claimants, requesting the objection be dismissed because Wutha had failed, within a reasonable time, to proceed with the objection or comply with a Tribunal direction.

3. On 11 August 2015, the Tribunal wrote to the Wutha native title claimants and to the State, asking them to respond by close of business 18 August 2015 to Iluka Resources’ request to dismiss.  On 11 August 2015, the State advised the Tribunal that it supported Iluka Resources’ request.   

4. On 11 August 2015, Wutha native title claimants requested an on-country oral hearing in this matter and another. The Tribunal wrote to the State and Iluka Resources asking them to respond by close of business 13 August 2015 to Wutha’s request.  On 12 August 2015, the State wrote to the Tribunal to advise it opposed the request. On 13 August 2015, Iluka Resources wrote to the Tribunal to advise that it also opposed.  On 17 August 2015, I requested all parties attend a directions hearing to ventilate the issue of the on-country hearing request and to allow Wutha native title claimants the opportunity to advise the Tribunal why the objection should not be dismissed.

5. On 25 August 2015, I held a directions hearing on this matter and the other matter, where oral hearings had been requested. At the directions hearing I asked Mr Harrington-Smith what the view of the Wutha native title claimants was, with regard to dismissal of this objection. After some discussion, Mr Harrington-Smith responded that the Wutha native title claimants understood they had not complied in this matter and the consequence was dismissal of the objection. He indicated the claim group would concentrate their energy on the other matter where contentions had been provided. At the directions hearing, I noted the closing date for lodging objections against the notice under s 29 of the Act had not been reached, and the dismissal of the objection would therefore occur on 10 September 2015, which is the day after the closing date. This was confirmed to parties by email from the Tribunal on 28 August 2015.

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

7. In the circumstances, 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 E38/3030 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member