Raymond William Ashwin (dec) & Ors on behalf of Wutha v The Kop Ventures Pty Ltd

[2015] NNTTA 60

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Ors on behalf of Wutha v The Kop Ventures Pty Ltd [2015] NNTTA 60 (10 December 2015)

Application No:                  WO2015/0523

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

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

-and-

The State of Western Australia  (Government party)

-and-

The Kop Ventures Pty Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Mr JR McNamara, Member

Place:Brisbane

Date of dismissal:              10 December 2015

Date of reasons:                10 December 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 Yaroslav Legeyda, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 3 June 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 P51/2942 to The Kop Ventures Pty Ltd (“grantee party”) without requiring The Kop Ventures Pty Ltd or the State, to negotiate with the Wutha People. The area of the proposed licence is covered by the native title claim WC1999/010.

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted that the grant can be made without negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Wutha People, the State, and The Kop Ventures Pty Ltd.

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 11 June 2015. I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry to determine whether the licence can be granted in such an expedited way.

Should the inquiry proceed or should the matter be dismissed?

1. On 20 October 2015, The Kop Ventures Pty Ltd advised the Tribunal they 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 were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 1 December 2015. 

2. Neither contentions nor evidence were received from the Wutha People by 1 December 2015.  On 2 December 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 2 December 2015, the Tribunal wrote to the Wutha People and The Kop Ventures Pty Ltd, asking them to respond to the State's request to dismiss.  Parties were given until 9 December 2015 to respond.  No response was received from the Wutha People or The Kop Ventures Pty Ltd. 

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 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 P51/2942 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Mr JR McNamara
Member
10 December 2015