Raymond William Ashwin (dec) and Others on behalf of Wutha v Ross Frederick Crew

[2015] NNTTA 52

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) and Others on behalf of Wutha v Ross Frederick Crew
[2015] NNTTA 52 (30 October 2015)

Application No:                  WO2015/0345

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-

Ross Frederick Crew  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              30 October 2015

Date of reasons:                30 October 2015

Catchwords:  Native title – future act – proposed grant of prospecting 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 Ross Frederick Crew

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 8 April 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 licence P38/4165 to Mr Ross Frederick Crew without requiring Mr Crew, or the State, negotiating with the Wutha people. 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, as they have included an expedited procedure clause in the public advertisement of the licence.  That is, they say the grant of this licence can be made expeditiously, without negotiation between the Wutha people, the State, and Mr Crew. 

3. The Wutha people lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence on 20 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 inquiry proceed or should the matter be dismissed?

1. On 25 August 2015, Mr Crew advised the Tribunal he 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 people were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 6 October 2015. 

2. Neither contentions nor evidence were received from the Wutha people by 6 October 2015.  On 12 October 2015, the State wrote to the Tribunal and the Wutha people representative, requesting the objection be dismissed because the Wutha people had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 12 October 2015, the Tribunal wrote to the Wutha people and Mr Crew, asking them to respond to the State's request to dismiss.  Parties were given until 16 October 2015 to respond.  No response was received from either Mr Crew or the Wutha people.  On 19 October 2015, Mr Crew lodged his contentions.  A further email was sent by the Tribunal on 22 October 2015, giving the Wutha people until 29 October 2015 to either provide contentions and evidence, or make application for an extension of the compliance date. 

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. As at the date of this determination, no response has been received from the Wutha people 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 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 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 P38/4165 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member
30 October 2015