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

[2018] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha and Joseph Paul Legendre and Another [2018] NNTTA 4  (31 January 2018)

Application No: WO2017/0249

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:	31 January 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: Mr Joseph Legendre

Representatives of the Government party:

Mr Michael McMahon, Department of Mines and Petroleum

Ms Bethany Conway, Department of Mines and Petroleum (now the Department of Mines, Industry Regulation and Safety)

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 5 April 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 E57/1048-I to Jospeh Paul Legendre , without requiring Mr Legendre or the State to negotiate with the Wutha native title claim group (the Wutha claim group). The area of the proposed licence is wholly 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 Mr Legendre.

3. On 7 April 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 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. On 6 December 2017, 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 10 January 2018.

2. Neither contentions nor evidence were received from the Wutha claim group by 10 January 2018. On 15 January 2018, the State wrote to the Tribunal and all parties requesting the objection be dismissed on the basis that the Wutha claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 15 January 2018, the Tribunal wrote to the representative of the Wutha claim group and Mr Legendre, requesting a response to the State’s request to dismiss the objection. Parties were given until 19 January 2018 to respond. Mr Legendre supported the State’s request to dismiss the objection application.

4. The Tribunal did not receive any communication from 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 E57/1048-I is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
31 January 2018