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

[2016] NNTTA 26

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v SLS Exploration Pty Ltd and Another [2016] NNTTA 26 (14 July 2016)

Application No:                  WO2015/0681

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-

SLS Exploration Pty Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              14 July 2016

Date of reasons:                14 July 2016

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 Act1993 (Cth) ss 29, 148(b)

Cases:Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)

Western Australia v Ben Ward & Ors on behalf of the Miriuwung Gajerrong peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd [1996] FCA 993; 70 FCR 265 (‘WA v Ward’)

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 Ray Hammond

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 12 August 2015, 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 E57/1028 to SLS Exploration Pty Ltd (SLS Exploration) without requiring SLS Exploration 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 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 SLS Exploration. The expedited procedure provision under the Act (s 32) is therefore the relevant provision as to process.

3. On 17 August 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 11 May 2015, the representative for SLS Exploration advised the Tribunal that they wished this matter to proceed to inquiry. 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 was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 22 June 2016. 

2. Neither contentions nor evidence were received from the Wutha claim group by 22 June 2016. On 27 June 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.

3. On 27 June 2016, the Tribunal wrote to the Wutha claim group’s representative and SLS Exploration’s representative, asking them to respond to the State's request to dismiss the objection. Parties were given until 4 July 2016 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. I also note the Federal Court decision in WA v Ward, which established that a determination whether the expedited procedure is attracted is to be made as speedily as possible.

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. The expedited procedure process provides that a native title party can lodge an objection (s 32(3)), as the Wutha claim group has done in this matter. However, in the context of the s 32 expedited procedure, there is no obligation on the State to give the native title party – in this inquiry, the Wutha claim group – the opportunity to make submissions regarding the act. There is also no obligation on the 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.

7. Parties need to be aware that once matters come before the Tribunal in the expedited procedure, the Tribunal’s only functions under the expedited procedure provision are to accept an objection if it complies with s 76 and, having done so, determine whether or not the expedited procedure is attracted. If I determine that it is attracted, the State may do the act. If I determine it is not attracted then, and only then, does the right to negotiate arise. Following a determination, the expedited procedure process has then been completed. Consideration of a right to negotiate is not relevant to the determination under s 32.

8. In practical terms, the Tribunal recognises that an agreement which can be negotiated between parties will usually be preferred by parties, over one that is imposed on them through an arbitral process. The Tribunal also recognises that it takes time to negotiate agreements, taking into account the decision making processes of the parties. However, once an objection is made by a native title party, it must proceed with that objection as quickly and effectively as possible. Where time for negotiation is needed to make an agreement, it will be considered by the Tribunal. However, if a party gives no response or fails to provide information or evidence when directed, it is likely to prejudice the other parties, and may result in the dismissal of the objection.

9. 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 exploration licence E57/1028 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
14 July 2016