Raymond William Ashwin & Others on behalf of Wutha and Factor Resources Pty Ltd

[2018] NNTTA 63

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha and Factor Resources Pty Ltd [2018] NNTTA 63 (16 October 2018)

Application No: WO2017/0859

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 & Others on behalf of Wutha (WC1999/010)

(native title party)

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Factor Resources 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:	16 October 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 Claire Riessen, Mining Access Legal

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 13 December 2017, the State Government of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence E51/1853 to Factor Resources Pty Ltd. The area of the proposed licence is overlapped by the Wutha claim group’s native title claim (WC1999/010).

2. By including the expedited procedure statement in the public advertisement of the licence, the State has asserted the grant can be made without negotiation between Wutha, the State and Factor Resources.

3. On 21 December 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 former 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. 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. These directions were sent to all parties on 14 August 2018.  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 September 2018.

2. Neither contentions nor evidence were received from the Wutha claim group by

   
   

   19 September 2018. 

3. The Tribunal wrote to all parties on 5 October 2018 advising that the Wutha claim group compliance date had passed and as such Wutha had failed to comply with the dates for the inquiry. The Tribunal further advised that if a native title party does not lodge any materials within the given timeframe, they are at grave risk of having their objection dismissed. As such, I directed that for the sake of procedural fairness, if any party has any comment, in relation to compliance or to the possibility of dismissal, to submit them on or by 12 October 2018, for my consideration.

4. The Tribunal did not receive any communication from any party, including the Wutha claim group, in regards to 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 E51/1853 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
16 October 2018