Raymond William Ashwin & Others on behalf of Wutha and Joseph Paul Legendre

[2019] NNTTA 13

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha and Joseph Paul Legendre [2019] NNTTA 13 (20 March 2019)

Application No:    WO2018/0630

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 -

Joseph Paul Legendre

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	20 March 2019

Catchwords:	Native title – future act – proposed grant of prospecting 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: Mr Joseph Legendre

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 August 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 licence P57/1440-S to Joseph Paul Legendre. The area of the proposed licence is overlapped by the Wutha claim group’s native title claim (WC1999/010). 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 Joseph Paul Legendre.

2. On 28 August 2018, 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 have been appointed to conduct the inquiry in this matter.

Should the inquiry proceed or should the matter be dismissed?

1. On 16 January 2019, Mr Legendre requested to proceed to inquiry. The Tribunal made directions that same day, 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 the same day they were issued.  The State complied with their directions on 31 January 2019, and copied in the Tribunal and all parties to their documents and information.

2. The Wutha claim group did not provide their materials on or before their compliance date of 27 February 2019.  Neither contentions nor evidence were received from the Wutha claim group on or by that date, nor was an extension request or reason for non-compliance received. 

3. On 6 March 2019, the Tribunal received a request from the State to dismiss the objection under s148(b) of the Native Title Act 1993 (Cth), as the native title party had failed to provide contentions and evidence by their due date, and no reason for non-compliance, or request to extend this date, had been received. This request was copied to all parties.

4. The Tribunal wrote to all parties on 6 March 2019 asking them to provide any response to the State’s dismissal request, by no later than the close of business 13 March 2019, for my consideration.  That same day Mr Legendre advised that he agreed with the State and requested that the matter be dismissed. No response was received from the Wutha claim group.

5. In considering the dismissal request, 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 exploration licence P57/1440-S is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
20 March 2019