Raymond William Ashwin (dec) and Others on behalf of Wutha v Joseph Paul Legendre

[2015] NNTTA 28

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Joseph Paul Legendre [2015] NNTTA 28 (21 July 2015)

Application Nos:                WO2015/0090, WO2015/0091 & WO2015/0092

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-

Joseph Paul Legendre  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              21/07/2015

Date of reasons:                21/07/2015

Catchwords:  Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – objection applications 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 Joseph Paul Legendre

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 14 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 prospecting licences P57/1360, P57/1361 and P57/1362 to Mr Joseph Paul Legendre without Mr Legendre negotiating with the Wutha people. The Wutha native title claim overlaps each licence by 100 per cent.

2. The State has asserted the grant can be made without such negotiations, as they have included an expedited procedure clause in the public advertisement of the licences.  That is, they say the grant of these licences can be made expeditiously, without negotiation between the Wutha people and Mr Legendre. 

3. The Wutha people lodged objections with the National Native Title Tribunal against the application of the expedited procedure to the grant of each licence on 27 January 2015.  To answer the question of whether the licences 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 these matters. 

Should the inqury proceed or should the matter be dismissed?

1. On 28 May 2015, Mr Legendre advised the Tribunal he wanted these matters 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 9 July 2015. 

2. Neither contentions nor evidence were received from the Wutha people by 9 July 2015.  On 14 July 2015, the State wrote to the Tribunal requesting the objections be dismissed because the Wutha people had failed, within a reasonable time, to proceed with the objections or comply with Tribunal directions.

3. On 14 July 2015, the Tribunal wrote to the Wutha people and Mr Legendre, asking them to respond to the State's request to dismiss. On 14 July 2015, Mr Harrington-Smith telephoned the Tribunal but did not give any reasons as to why the dismissal should not go ahead. 

4. On 15 July 2015, Mr Legendre wrote to the Tribunal, supporting the request to dismiss. 

5. 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.

6. On 15 July 2015, the Tribunal again wrote to the Wutha people, asking them to respond by email regarding the State's request to dismiss the objections. As at the date of this determination, no response has been received from the Wutha people as to why the objections 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 objections should be dismissed.

Decision

1. The objection applications against prospecting licences P57/1360, P57/1361 and P57/1362 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member