Raymond William Ashwin (dec) & Others on behalf of Wutha v Nova Energy Pty Ltd and Another
[2018] NNTTA 1
•5 January 2018
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin (dec) & Others on behalf of Wutha v Nova Energy Pty Ltd and Another [2018] NNTTA 1 (5 January 2018)
Application No: | WO2017/0109 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Raymond William Ashwin (dec) & Others on behalf of Wutha (WC1999/010)
(native title party)
- and -
Nova Energy Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | Ms H Shurven |
Place: | Perth |
Date: | 5 January 2018 |
Catchwords: | Native title – future act – proposed grant of retention licence – expedited procedure objection application – failure to comply with directions – objection application dismissed |
Legislation: | Native Title Act 1993 (Cth) ss 29, 148(b) |
| Representative of the native title party: | Mr Ron Harrington-Smith |
| Representative of the grantee party: | Ms April French, Austwide Legal Pty Ltd |
| Representative of the Government party: | Ms Bethany Conway, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Background
On 25 January 2017, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant retention licence R51/3 to Nova Energy Pty Ltd (Nova Energy). The area of the proposed licence is wholly overlapped by the Wutha claim group’s native title claim (WC1999/010). By including an expedited procedure statement in the public advertisement of the licence, the State asserted that the grant can be made without requiring Nova Energy or the State to negotiate with the Wutha claim group.
On 10 February 2017, 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?
On 1 November 2017, 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 for the objection application, verified where possible by affidavit, on or before 13 December 2017.
The Wutha claim group did not provide contentions or evidence, or request further time to provide the documents, by 13 December 2017. On 14 December 2017, Nova Energy’s representative wrote to the Tribunal and all parties, requesting the objection be dismissed on the basis that the Wutha claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.
On 14 December 2017, the Tribunal wrote to the representatives of the Wutha claim group and the State, and gave them until 19 December 2017 to respond to Nova Energy’s request to dismiss the objection, and indicated that if no responses are received, the matter would be scheduled for a listing hearing on Friday 5 January 2018. On 14 December 2017, the State responded that they supported the request to dismiss the objection. No response was received from the Wutha claim group.
At the hearing on 5 January 2018, the Wutha claim group’s non-compliance was canvassed, and useful discussion was had between parties regarding the rights and responsibilities associated with a retention licence, as compared with an exploration or mining licence. All parties agreed that given the age of the matter, and the nature of the licence, the most appropriate course of action was for the objection application to be dismissed.
Determination
The objection against retention licence R51/3 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).
Ms H Shurven
Member
5 January 2018
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