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

[2017] NNTTA 55

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Resource Assets Pty Ltd and Another [2017] NNTTA 55 (8 September 2017)

Application No: WO2016/0902; WO2016/0903; WO2016/0907; WO2016/0947

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)

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The State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	8 September 2017

Catchwords:	Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – objection applications 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 Ron Harrington-Smith

Representative of the grantee party: Ms Sara Winton, McMahon Mining Title Services Pty Ltd

Representative of the Government party: Ms Bethany Conway, 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 licences E29/987, E29/988, E29/989 and E29/990 (the licences) to Resource Assets Pty Ltd (Resource Assets) 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) wholly overlaps each of the licences.

2. By including an expedited procedure statement in the public advertisement of the licences, the State has asserted that the grants can be made without such negotiation. That is, they say the grant of the licences can be made expeditiously, without negotiation between the Wutha claim group, the State, and Resource Assets.

3. 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 each licence. To answer the question of whether the licences 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 these matters.

Should the inquiry proceed or should the matters be dismissed?

1. On 12 July 2017, Resource Assets requested that the matters 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 grants. The Wutha claim group were directed to provide a statement of contentions, documentary evidence and witness statements for each 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 24 August 2017, the State wrote to all parties, requesting the objections be dismissed because the Wutha claim group had failed, within a reasonable time, to proceed with the objections or comply with Tribunal directions.

3. On 24 August 2017, the Tribunal wrote to all parties asking them to respond to the State’s request to dismiss the objections. Parties were given until 31 August 2017 to respond. On 25 August 2017, Resource Assets’ representative advised that Resource Assets supported the dismissal request. 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 objections 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 objections should be dismissed.

Determination

1. The objection applications against exploration licences E29/987, E29/988, E29/989 and E29/990 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
8 September 2017