Raymond William Ashwin & Ors on behalf of Wutha v Yelo Resources Pty Ltd

[2015] NNTTA 3

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Ors on behalf of Wutha v Yelo Resources Pty Ltd [2015] NNTTA 3 (21 January 2015)

Application No:                  WO2014/0436

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 & Ors on behalf of Wutha (WC1999/010) (native title party)

-and-

The State of Western Australia    (Government party)

-and-

Yelo Resources Pty Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              21 January 2015

Date of reasons:                21 January 2015

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 Stephen Catania, Mony De Kerloy

Representative of the        

Government party:            Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party:  Mr Greg Abbott, M & M Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 12 February 2014, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E57/956 (‘the proposed licence’) to Yelo Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.

2. On 9 June 2014, Raymond William Ashwin and others on behalf of Wutha (native title claim WC1999/010 registered from 15 June 1999) (‘the native title party’) lodged an expedited procedure objection application with the National Native Title Tribunal ('the Tribunal') in relation to the notice about the proposed licence(matter WO2012/0436).

Relevant facts

1. The first preliminary conference for this matter was vacated after parties communicated they were intending to negotiate an agreement. The matter was adjourned to a status conference on 5 November 2014 to allow time for these negotiations to occur.

2. On 5 November 2014, the grantee and native title parties did not attend the status conference and did not advise whether negotiations were still ongoing - timeframes for agreement were unclear. In the absence of any agreement, or any clear progress towards agreement, directions were made on 5 November 2014, requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 17 December 2014. The directions contained a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector failed within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

3. Neither contentions nor evidence were received from the native title party by the due date of 17 December 2014. No explanation has been provided for the failure to comply with the Tribunal’s directions, despite the native title party having been informed of the possible consequences of a failure to comply.

4. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act, 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 application.

5. The native title party has known that this matter was proceeding to inquiry since 5 November 2014. It is the native title party’s responsibility to ensure that contentions and evidence are submitted in a timely manner and in accordance with the Tribunal’s directions. On 7 January 2015, the Government party requested that this matter be dismissed under s 148(b) of the Act, and the Tribunal wrote to the native title party representative and the grantee party representative, to note that no contentions or evidence had been received from the native title party by the due date. The Tribunal forwarded the request to all parties, and the native title party were given until close of business on 8 January 2015 to respond as to why the matter should not be dismissed. On 7 January 2015, the grantee party communicated to the Tribunal and all parties its support for the Government party request for dismissal. As at the date of this determination, no response has been received from the native title party.

6. In the circumstances, the native title party has been given sufficient opportunity to comply with the directions of the Tribunal, and it would be unfair to prejudice the other parties with further delays.

Decision

1. As the native title party has failed to comply with directions made by the Tribunal on 5 November 2014, the objection application WO2014/0436 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Ms H Shurven
Member