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

[2015] NNTTA 44

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Intermin Resources Ltd [2015] NNTTA 44 (16 September 2015)

Application Nos:                WO2015/0319

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-

Intermin Resources Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              16 September 2015

Date of reasons:                16 September 2015

Catchwords:  Native title – future act – proposed grant of exploration licences – 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 Greg Abbott, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 25 February 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 E51/1040 (Amalgamation 459244) to Intermin Resources Ltd. The notice included a statement that the State considers the grant attracts the expedited procedure - that is, the grant can be done without the normal negotiations required by s 31 of the Act. The normal negotiations require all parties to negotiate in good faith with native title claimants for the relevant land or waters, with a view to obtaining their agreement to the grant. The Wutha native title claim overlaps the licence by 100 per cent.

2. The State has asserted the grant can be made without such negotiations with the Wutha native title claimants because the activities permitted under the licence are not likely to interfere with the groups’ community or social activities, sites of particular significance, or involve major disturbance to the land and waters. That is, the State asserts the grant of this licence can be made expeditiously, without such negotiations, and included an expedited procedure clause in the s 29 notice to that effect.

3. 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 on 2 April 2015.  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 14 July 2015, the Tribunal was advised that Intermin Resources 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 25 August 2015.  It was noted to all parties that if the objector failed within a reasonable time to progress the objection or comply with a direction of the Tribunal, the Tribunal may dismiss the objection.

2. Neither contentions nor evidence were received from the Wutha people by 25 August 2015.  On 27 August 2015, the State wrote to the Tribunal and all parties 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 27 August 2015, the Tribunal wrote to all parties, asking them to respond to the State's request to dismiss. On 28 August 2015, the representative for Intermin Resources wrote to the Tribunal, supporting the request to dismiss.  

4. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, 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 objection.

5. On 28 August 2015, the Tribunal again wrote to the Wutha native title claimants, clarifying they should respond by 2 September 2015 to the request for dismissal, and if no response was received, the request would be put to me as the Member for the inquiry. As at the date of this determination, no response has been received from the Wutha native title claimants 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.

6. 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.  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 prospecting licence E51/1040 (Amalgamation 459244) is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member