Raymond William Ashwin (dec) and Others on behalf of Wutha v Murchison Gold Mines Pty Ltd

[2015] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Murchison Gold Mines Pty Ltd [2015] NNTTA 42 (9 September 2015)

Application Nos:                WO2014/0899, WO2014/0900, WO2014/0901 & WO2014/0902

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-

Murchison Gold Mines Pty Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              9 September 2015

Date of reasons:                9 September 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 Michael Giles

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 5 November 2014, 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 prospecting licences P21/726, P21/727, P21/728 and P21/729 to Murchison Gold Mines Pty Ltd without Murchison Gold Mines Pty Ltd negotiating with the Wutha native title claimants (see s 31 of the Act). 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 native title claimants and Murchison Gold Mines. 

3. The Wutha native title claimants lodged objections with the National Native Title Tribunal (the Tribunal) against the application of the expedited procedure to the grant of each licence on 19 November 2014.  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 15 July 2015, Murchison Gold Mines advised the Tribunal they 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 native title claimants were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 26 August 2015. 

2. Neither contentions nor evidence were received from the Wutha native title claimants by 26 August 2015.  On 27 August 2015, the State wrote to the Tribunal requesting the objections be dismissed because the Wutha native title claimants had failed, within a reasonable time, to proceed with the objections or comply with Tribunal directions.

3. On 27 August 2015, the Tribunal wrote to the Wutha native title claimants and Murchison Gold Mines, asking them to respond to the State's request to dismiss. No response was received from either party. 

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 these matters. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

5. As at the date of this determination, no response has been received from the Wutha native title claimants 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.

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 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 P21/726, P21/727, P21/728 and P21/729 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member