Raymond William Ashwin (dec) & Others on behalf of Wutha v Blue Thunder Resources Pty Ltd and Another

[2016] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Blue Thunder Resources Pty Ltd and Another [2016] NNTTA 42 (4 October 2016)

Application No:                  WO2016/0275

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) & Others   on behalf of Wutha (WC1999/010)  (native title party)

-and-

The State of Western Australia  (Government party)

-and-

Blue Thunder Resources Pty Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              4 October 2016

Date of reasons:                4 October 2016

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:Native Title Act1993 (Cth), ss 29, 148(b)

Cases:Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)

Western Australia v Ben Ward & Ors on behalf of the Miriuwung Gajerrong peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd [1996] FCA 993; 70 FCR 265 (‘WA v Ward’)

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:  Ms Sara Winton, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 9 March 2016, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E36/851 to Blue Thunder Resources Pty Ltd (Blue Thunder Resources) without requiring Blue Thunder Resources or the State to negotiate with the Wutha native title claim group (the Wutha claim group). The area of the proposed licence partially overlaps the Wutha 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 such negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Wutha claim group, the State, and Blue Thunder Resources. The expedited procedure provision under the Act (s 32) is therefore the relevant provision as to process.

3. On 3 May 2016, the Wutha claim group lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence. 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 26 July 2016, the State, through the Department of Mines and Petroleum, sent a letter to the Tribunal and all parties advising that:

   On 25 May 2016 a request was received from the Grantee Party representative to excise the portion of application for Exploration Licence 36/851 that encroaches on the Wutha claim area. Excision only comes into effect on the grant of the tenement.

   This excision will mean that the proposed future act will not include any of the Wutha claim area. The remaining portion of the application going to grant is not affected by any current Native Title Claims or Determinations.

2. The same day, the Tribunal wrote to the Wutha claim group representative, seeking confirmation as to whether or not he was intending to withdraw the objection application.  No response was received.  The Tribunal then wrote to all parties on 29 July 2016, advising as follows:

   Thank you for the State's notice of proposed excision.

   Unless the parties agree otherwise, the Tribunal must conduct the inquiry in relation to the objection applications currently before it and entire area of E36/851.

   If all parties agree that the proposed excision removes the need for an inquiry in relation to these matters it is open for the native title party to withdraw their objection.

   If any party would like to make comment or respond to any of the points above, please do so by COB Thursday, 11 August 2016.

   No response was received from the Wutha claim group representative. 

3. On 11 August 2016 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 claim group were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavit, on or before 20 September 2016. 

4. Neither contentions nor evidence were received from the Wutha claim group by 20 September 2016. On 21 September 2016, the State wrote to all parties, requesting the objection be dismissed because the Wutha claim group had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

5. On 23 September 2016, the Tribunal wrote to the Wutha claim group’s representative and Blue Thunder Resource’s representative, asking them to respond to the State's request to dismiss the objection. Parties were given until 29 September 2016 to respond. No response was received from the Wutha claim group or from Blue Thunder Resource’s representative.

6. In considering this dismissal, I have regard to the applicable principles set out by the Tribunal in Teelow v Page (at [13]). In particular, I note the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection. I also note the Federal Court decision in WA v Ward, which established that a determination whether the expedited procedure is attracted is to be made as speedily as possible.

7. As at the date of this determination, no response has been received from the Wutha claim group 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.

8. In the circumstances, the Wutha claim group have been given sufficient opportunity to comply with directions set by 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 against exploration licence E36/851 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
4 October 2016