Raymond William Ashwin (dec) & Ors on behalf of Wutha v Mathew Gordon Vanmaris

[2015] NNTTA 24

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Ors on behalf of Wutha v Mathew Gordon Vanmaris [2015] NNTTA 24 (1 July 2015)

Application No:                  WO2015/0096

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Raymond William Ashwin (dec) & Ors
on behalf of Wutha (WC1999/010)   (native title party)

-and-

The State of Western Australia    (Government party)

-and-

Mathew Gordon Vanmaris  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              1 July 2015

Date of reasons:                1 July 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 Mathew Gordon Vanmaris

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 licence P29/2356 to Mr Mathew Gordon Vanmaris without Mr Vanmaris negotiating with the Wutha people. The Government 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 the licence can be made expeditiously, without negotiation between the Wutha people and Mr Vanmaris. The Wutha native title claim overlaps the licence by 72.16 per cent.

2. The Wutha people lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant on 17 January 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 6 April 2015, Mr Vanmaris advised the Tribunal he wanted the 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 to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 22 May 2015. 

2. Neither contentions nor evidence were received from the Wutha people by 22 May 2015.  On 27 May 2015, the Government wrote to the Tribunal 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 27 May 2015, the Tribunal asked the Wutha people and Mr Vanmaris to respond to the Government's request to dismiss. On 29 May 2015, the Wutha people advised that the Regional Standard Heritage Agreement would be sufficient to resolve the objection. The Wutha people were to pursue this option with Mr Vanmaris. Directions were amended on 2 June 2015 to allow for exchange of documents, with the Wutha people then due to provide contentions and evidence on or before 16 June 2015.  

4. On 17 June 2015, the Government again wrote to the Tribunal requesting this matter be dismissed, as no contentions or evidence had been received from the Wutha people by their due date of 16 June 2015.  The Wutha people have known this matter was proceeding to inquiry since 10 April 2015. It is the Wutha people's responsibility to ensure contentions and evidence are submitted in a timely manner and in accordance with the Tribunal’s directions.

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 17 June 2015, the Tribunal asked the Wutha people and Mr Vanmaris to respond to the Government's request. As at the date of this determination, no response has been received from Mr Vanmaris or  the Wutha people, 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 of the Tribunal, 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 WO2015/0096 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member