Raymond William Ashwin & Others on behalf of Wutha and Bullseye Mining Ltd and Another

[2018] NNTTA 33

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha and Bullseye Mining Ltd and Another [2018] NNTTA 33 (25 May 2018)

Application No: WO2017/0165

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 & Others on behalf of Wutha (WC1999/010)

(native title party)

- and -

Bullseye Mining Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	25 May 2018

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’)
Representative of the native title party:	Mr Ron Harrington-Smith

Representative of the grantee party: Ms Janet Procack, All Mining Legal Pty Ltd

Representatives of the Government party: Ms Bethany Conway and Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 22 February 2017, 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 E37/1291-I to Bullseye Mining Ltd (Bullseye Mining), without requiring Bullseye Mining or the State to negotiate with the Wutha native title claim group (the Wutha claim group). The area of the proposed licence is partially 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 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 Bullseye Mining.

3. On 8 March 2017, 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 then 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. When the objection was notified to all parties, the communication from the Tribunal included the statement that:

   If and once directions are set, the matter will proceed to a listing hearing, if required, and a determination. Parties will be expected to comply promptly with the directions to ensure a full and efficient inquiry. Parties can continue to negotiate during the inquiry process and request assistance from the Tribunal if it is needed.

2. Parties indicated they intended to attempt to resolve the objection by reaching agreement.  The Tribunal allows a period for parties to attempt to do so.  Ultimately, parties were unable to reach agreement and on 28 February 2018, 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 11 April 2018.

3. Neither contentions nor evidence were received from the Wutha claim group and on 4 May 2018, the Tribunal wrote to the Wutha representative and all parties stating (emphasis in original):

   Member Shurven notes the native title party has failed to comply with the directions issued on 28 February 2018 (attached), which directed compliance to be done on or by 11 April 2018.  The Member directs the Wutha claim group representative to advise, by COB Monday 7 May 2018, whether or not they intend to lodge any submissions or evidence in this matter.  No response by COB 7 May 2018 will be taken to indicate that no submissions or evidence are intended to be provided.  The Member will then move to dismiss the objection – that dismissal will take place on or by Friday 11 May 2018.

4. On 7 May 2018, the Wutha representative requested an extension for compliance until 18 May 2018 to enable them to contact Bullseye Mining.  On 8 May 2018 the State requested more information about the intended pathway towards agreement and the proposed contact between Wutha and Bullseye Mining.  No further information was provided.

5. On 8 May the Tribunal wrote twice to the representative of the Wutha claim group and all parties, once to extend compliance dates to 18 May 2018 for the Wutha claim group, and once as follows (emphasis in original):

   Further to the email sent this morning extending compliance dates in this matter, the Member has also requested an additional direction be added to this matter, which is that Mr Harrington-Smith update all parties and the Tribunal about progress in this matter on or by 15 May 2018.  It is noted that the extension was requested so that Mr Harrington-Smith could make contact with the grantee party.  The expedited procedure is an inquiry process, and while some allowance will be made for parties to negotiate to reach agreement, the inquiry process must proceed without undue delay.  The Member has advised it is unlikely further extensions will be granted unless it appears that agreement is imminent or there are other extenuating circumstances that the Member needs to consider.  Failure of Mr Harrington-Smith to provide an update on or by 15 May, and/or failure to provide any contentions or evidence by Friday 18 May puts the objection application at risk of dismissal.

6. The Tribunal did not receive any communication or compliance documents from the Wutha claim group.

7. 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. 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 prospecting licence E37/1291-I is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
25 May 2018