Raymond William Ashwin (dec) & Others on behalf of Wutha v Yellow Rock Resources Ltd and Another

[2016] NNTTA 8

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Yellow Rock Resources Ltd and Another [2016] NNTTA 8 (3 February 2016)

Application No:                  WO2015/0574

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-

Yellow Rock Resources Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              3 February 2016

Date of reasons:                3 February 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:Teelow v Page (2001) 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:  Mr Cameron Hardie, Tenement Solutions

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 1 July 2015, the State Government of Western Australia (‘the State’) gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E51/1685 to Yellow Rock Resources Ltd (‘Yellow Rock’) without requiring Yellow Rock or the State to negotiate with the Wutha native title claim group (‘the Wutha claim group’). The area of the proposed licence 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 Yellow Rock.

3. The Wutha claim group lodged an objection with the National Native Title Tribunal (‘the Tribunal’) against the application of the expedited procedure to the grant of the licence on 2 July 2015. 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 1 December 2015, Mr Cameron Hardie, the representative for Yellow Rock, advised the Tribunal that Yellow Rock wanted this matter to proceed to an inquiry. Directions were made 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 representative for 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 12 January 2016. 

2. Neither contentions nor evidence were received from the Wutha claim group by 12 January 2016. On 13 January 2016, the State wrote to the Tribunal and parties requesting the objection be dismissed because Wutha had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 13 January 2016, the Tribunal wrote to the Wutha claim group representative and Yellow Rock, asking them to respond to the State's request to dismiss.  Parties were given until 20 January 2016 to respond.  On 13 January 2016, Mr Hardie, representing Yellow Rock, wrote to the Tribunal supporting the State’s request to dismiss this objection. No response was received from the Wutha claim group representative.

4. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, which I have had regard to in this matter.  In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure objection.

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, Wutha 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 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 E51/1685 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
3 February 2016