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

[2017] NNTTA 47

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Youanmi Metals Pty Ltd and Another [2017] NNTTA 47 (4 August 2017)

Application No: WO2016/0518

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 -

Youanmi Metals Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	4 August 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 Act1993 (Cth) ss 29, 148(b)
Cases:	Teelow v Page [2001] NNTTA 107; 166 FLR 266 (‘Teelow v Page’)
Representatives(s) of the native title party:	Mr Ron Harrington-Smith

Representative(s) of the grantee party: Ms Janet Procak, M & M Walter Consulting

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 13 July 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 E29/974 to Youanmi Metals Pty Ltd (Youanmi Metals) without requiring Youanmi Metals or the State to negotiate with the Wutha native title claim group (the Wutha claim group). The area of the proposed licence is wholly overlapped by the Wutha claim group’s native title claim (WC1999/010).

2. By including an expedited procedure statement in the public advertisement of the licence, the State has asserted 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 Youanmi Metals.

3. On 15 August 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 9 June 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 was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 19 July 2017.

2. Neither contentions nor evidence was received from the Wutha claim group by 19 July 2017. On 13 July 2017, the Tribunal wrote to the Wutha representative, at his request, with an update on enquiry matters, including this matter. That update confirmed compliance was due on 19 July 2017 and a request could be made for extension of the direction date. On 20 July 2017, the State 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.

3. On 21 July 2017, the Tribunal wrote to the representative of the Wutha claim group and Youanmi Metals, asking them to respond to the State’s request to dismiss the objection. Parties were given until 28 July 2017 to respond.

4. There was no further communication from any party concerning the request for dismissal.

5. 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.

6. 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 E29/974 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
4 August 2017