Raymond William Ashwin (dec) & Ors on behalf of the Wutha People v Colin Robert Neve

[2015] NNTTA 54

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Ors on behalf of the Wutha People v Colin Robert Neve [2015] NNTTA 54 (20 November 2015)

Application No:                  WO2015/0461

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) & Ors on behalf of the Wutha People (native title party)

-and-

The State of Western Australia  (Government party)

-and-

Colin Robert Neve   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Mr J McNamara, Member

Place:Brisbane

Date of dismissal:              20 November 2015

Date of reasons:                20 November 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 Colin Neve

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 22 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 P21/732 to Colin Robert Neve without requiring him, or the State, to negotiate with the Wutha People. The area of the proposed licence is covered by the native title claim WC1999/010. The claim area 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 Neve.

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 15 May 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 16 September 2015, Mr Neve advised the Tribunal he wanted this matter to proceed to an inquiry.  Member Helen Shurven 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 was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 29 October 2015. 

2. No contentions or evidence was received from the Wutha People by 29 October 2015.  On 3 November 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 3 November 2015, the Tribunal wrote to the Wutha People and Mr Neve asking them to respond to the State's request to dismiss.  Parties were given until 10 November 2015 to respond.  No response was received from Mr Neve or the Wutha People. 

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 either the grantee party or 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 has been given sufficient opportunity to comply with directions set by Member Shurven, 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 P21/732 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Mr J McNamara
Member
20 November 2015