Raymond William Ashwin (dec) & Others on behalf of Wutha v Murray Ian Leahy and Another

[2017] NNTTA 3

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Murray Ian Leahy and Another [2017] NNTTA 3 (1 February 2017)

Application No:                 WO2016/0660

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-

Murray Ian Leahy  
(grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              1 February 2017

Date of reasons:                 1 February 2017

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 Act 1993 (Cth) ss 29, 148(b)

Cases:Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)

Representative of the

native title party:               Mr Ronald Harrington-Smith

Representative of the        

Government party:           Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party:  Ms Tracy Browning, Global Exploration Tenement Services (GETS)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 21 September 2016, 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 P51/2977 to Murray Ian Leahy without requiring Mr Leahy 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 claim group’s 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 Mr Leahy.

3. On 10 October 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 3 November 2016, Mr Leahy’s representative advised the Tribunal that Mr Leahy wanted this matter to proceed to an inquiry. In the context of the expedited procedure statement (as per s 32 of the Act), there is no obligation on the State to give the native title party the opportunity to make submissions. There is also no obligation on the negotiating parties to negotiate, in contrast to the procedure required by s 31. That is, under s 32, the native title party has no right, and the other parties have no obligation to negotiate in the course of the expedited procedure process.

2. On 4 November 2016, I made directions requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the grant of the licence attracted the expedited procedure. The Wutha claim group was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 16 December 2016. 

3. Neither contentions nor evidence were received from the Wutha claim group by 16 December 2016. On 20 December 2016, the State wrote to the Tribunal and 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 the Tribunal’s directions.

4. On 20 December 2016, the Tribunal wrote to the representative of the Wutha claim group and Mr Leahy’s representative, asking them to respond to the State’s request to dismiss the objection.  Parties were given until 23 January 2017 to respond. No response was received from the Wutha claim group.

5. 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.  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 has 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 P51/2977 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
1 February 2017