Raymond William Ashwin (dec) & Others on behalf of Wutha v Kym Anthony McClaren & Leo Tanucci and Another

[2016] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Kym Anthony McClaren & Leo Tanucci and Another [2016] NNTTA 20 (23 May 2016)

Application No:                  WO2015/1018

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-

Kym Anthony McClaren & Leo Tanucci   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              23 May 2016

Date of reasons:                23 May 2016

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 Kym McClaren

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 18 November 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 P57/1386 to Kym Anthony McClaren and Leo Tanucci, without requiring Mr McClaren and Mr Tanucci or the State to negotiate with the Wutha native title claim group (the Wutha claim group). The area of the proposed licence 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, Mr McClaren and Mr Tanucci.

3. On 7 December 2015, 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 29 March 2016, Mr McClaren advised the Tribunal that he wished this matter to proceed to an inquiry.  The same day, 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 affidavits, on or before 10 May 2016. 

2. Neither contentions nor evidence were received from the Wutha claim group by 10 May 2016. On 11 May 2016, the State wrote to the Wutha claim group’s representative 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 Tribunal directions.

3. On 12 May 2016, the Tribunal wrote to the Wutha claim group’s representative and Mr McClaren and Mr Tanucci, asking them to respond to the State's request to dismiss the objection.  Parties were given until 18 May 2016 to respond.  No response was received from the Wutha claim group or from Mr McClaren and Mr Tanucci.

4. 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.

5. 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.

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 prospecting licence P57/1386 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
23 May 2016