Raymond William Ashwin (dec) & Others on behalf of Wutha v Gregory David Wilson and Another

[2017] NNTTA 9

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Gregory David Wilson and Another [2017] NNTTA 9 (20 March 2017)

Application No:                  WO2016/0553

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-

Gregory David Wilson    (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              20 March 2017

Date of reasons:                20 March 2017

Catchwords: Native title – future act – proposed grant of prosecting licence – expedited procedure objection application – role of Tribunal in expedited procedure objection applications – failure to comply with directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 31, 32, 148(b)

Cases:Teelow v Page [2001] NNTTA 107; 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 Gregory David Wilson

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 10 August 2016, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant prospecting licence E20/902 to Gregory David Wilson, without requiring Mr Wilson or the state to negotiate with the Wutha native title claim group (the Wutha claim group). The area of the proposed licence wholly 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 expeditiously, without negotiation between the Wutha claim group, the State, and Mr Wilson.

3. On 5 September 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 13 January 2017 Mr Wilson requested this matter proceed directly to inquiry. On 18 January 2017, Member McNamara 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 of the licence. The Wutha claim group were directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 1 March 2017.

2. Neither contentions nor evidence were received from the Wutha claim group on or by that date. On 2 March 2017, the State wrote to the Wutha claim group’s representative, as well as to Mr Wilson and the Tribunal, requesting the objection be dismissed because the Wutha claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 2 March 2017, the Tribunal wrote to the Wutha claim group’s representative and Mr Wilson, asking them to respond to the State’s request to dismiss the objection. Parties were given until 9 March 2017 to respond. No response was received from the Wutha claim group or Mr Wilson.

4. In considering the State’s request for dismissal of the objection, 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.

5. As at the date of this determination, the Tribunal has not received any response from the Wutha claim group as to why the objection should not be dismissed, nor has it received any request for extension of directions, nor any reason for non-compliance.

6. 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 E20/902 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
20 March 2017