Raymond William Ashwin (dec) & Others on behalf of Wutha v Resource Assets Pty Ltd

[2017] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Resource Assets Pty Ltd [2017] NNTTA 59 (26 September 2017)

Application No: WO2016/0891

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 -

Resource Assets Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	26 September 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’)
Representatives of the native title party:	Mr Ron Harrington-Smith

Representative of the grantee party: Ms Sara Winton, Mining Access Legal

Representatives of the Government party: Ms Bethany Conway, Department of Mines and Petroleum (now        Department of Mines, Industry Regulation and Safety)

REASONS FOR DETERMINATION

Background

1. On 16 November 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 E29/986 to Resource Assets Pty Ltd (Resource Assets). By including an expedited procedure statement in the public advertisement of the licence, the State asserted that the grant can be made without requiring Resource Assets or the State to negotiate with the Wutha native title claim group (the Wutha claim group). The Wutha claim group’s native title claim (WC1999/010) overlaps 100 percent of the licence.

2. On 12 December 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 12 July 2017, Resource Assets requested that the matter proceed to inquiry. On 13 July 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 23 August 2017. 

2. The Tribunal did not receive contentions or evidence from the Wutha claim group by 23 August 2017. On 14 September 2017, 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.  There was no response from the Wutha claim group.

3. On 14 September 2017, the Tribunal wrote to parties asking for their response to the State’s request to dismiss the objection, as no request for extension had been received. Parties were given until 20 September 2017 to respond. No response was received from the Wutha claim group.

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. Once an objection application is made, it is incumbent on the objector to proceed with the application, and to communicate with the Tribunal and all parties about the application.

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 licences can be granted in an expedited way because I have concluded the objection should be dismissed.

Determination

1. The objection application against exploration licence E29/986 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
26 September 2017