Raymond William Ashwin & Ors on behalf of Wutha v Cue Consolidated Mining Pty Ltd

[2019] NNTTA 2

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Ors on behalf of Wutha v Cue Consolidated Mining Pty Ltd [2019] NNTTA 2 (5 February 2019)

Application No: WO2018/0782 WO2018/0783 WO2018/0784 WO2018/0786

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Raymond William Ashwin & Ors on behalf of Wutha (WC1999/010)

(native title party)

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Cue Consolidated Mining Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	5 February 2019
Catchwords:	Native title – future act – proposed grant of prospecting licences – 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)
Representative of the native title party:		Ron Harrington-Smith

Representative of the grantee party:	Eamon Cornelius, Western Tenement Services
Representatives of the Government party:	Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 13 June 2018, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences: P21/766; P20/2345; P21/765; P20/2343 to Cue Consolidated Mining Pty Ltd (Cue Consolidated Mining). The areas of the proposed licences are overlapped by the Wutha claim (WC1999/010) (Wutha).

2. By including the expedited procedure statement in the public advertisement of the licence, the State has asserted the grants can be made without negotiation between Wutha, the State and Cue Consolidated Mining.

3. On 30 September 2018, Wutha lodged objections 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 as the Member conducting the inquiry in these matters.

Should the inquiry proceed or should the matter be dismissed?

1. On 28 November 2018, following consideration of a request from the Cue Consolidated Mining to set inquiry dates, 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. Wutha was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 9 January 2019. The State complied according to their scheduled date, providing materials to Wutha, Cue Consolidated Mining and the Tribunal.  Neither contentions nor evidence were received from Wutha. 

2. On 11 January 2019, the State requested the objection applications be dismissed, as Wutha had not complied with the Tribunal’s directions.  The Tribunal wrote to all parties the same day, seeking a response from Wutha and Cue Consolidated mining, and any reasons why the objections should not be dismissed.  Parties were given until 18 January 2019 to respond.

1. The representative for Cue Consolidated mining wrote to the Tribunal and all parties on 11 January 2019 to advise his client supported the dismissal request. Wutha provided no comment.  

2. In considering these dismissals, 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, as outlined to parties in the very first communications from the Tribunal in November 2018, which include a Statement of Expectations. That Statement, and subsequent procedural emails from the Tribunal, include the information that (emphasis in original):

   Parties should comply promptly with the Tribunal’s Directions to allow a full and efficient inquiry.

   Non-compliance with Directions could lead to dismissal of the objection application.

3. Given the course of this matter, the State’s dismissal request, and that there has been no compliance from Wutha, my conclusion is that Wutha has been given sufficient opportunity to comply with the directions, 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.

Decision

1. The objection applications against prospecting licences P21/766; P20/2345; P21/765; P20/2343 are dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven

Member

5 February 2019