Raymond William Ashwin & Others on behalf of Wutha and Nomad Explorations Pty Ltd

[2018] NNTTA 75

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha and Nomad Explorations Pty Ltd [2018] NNTTA 75 (11 December 2018)

Application No:    WO2018/0412

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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Nomad Explorations 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:	11 December 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 Julie Gilbert, Nomad Explorations 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 18 April 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 licences E57/1085 to Nomad Explorations Pty Ltd. 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 Nomad Explorations Pty Ltd.

2. On 31 May 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 licences. To answer the question of whether the licences 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. I made directions on 5 October 2018, 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 as directions were made.  The State complied with their directions on 19 October 2018, and copied in the Tribunal and all parties to their documents and information.

2. Directions requested the Wutha claim group provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 16 November 2018.  Neither contentions nor evidence were received from the Wutha claim group on or by 16 November 2018. 

3. On 19 November 2018 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 of 16 November 2018, 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 19 November 2018 requesting them to provide any response to the dismissal request received from the State, by no later than the close of business 26 November 2018, for my consideration.  The Tribunal received an email from the Wutha claim group representative on 20 November 2018, attaching a Heritage Agreement and stating ‘I refer to the above [attached agreement] please consider my Heritage Agreement  with Nomad Exploration Pty Ltd -E57/1085 on the proviso that I’ll pull back the objection forthwith’.

5. The Tribunal wrote to parties, making it clear that the expedited procedure is not one where they can have extended periods of negotiation. The Wutha claim group representative was advised as follows:

   At the interim status conference on 20 September the grantee indicated they were willing to negotiate an agreement.  It appears that draft agreement has only now been sent to the grantee.  You were not available at the status conference on 5 October, and as such directions were set.  If there is not compliance from you on or by Friday 7 December 2018, then this matter will go to Member Shurven for dismissal.  You are of course still able to negotiate with the grantee should both parties wish to reach agreement. 

   No response was provided by the Wutha claim group.

6. 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 E57/1085 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
11 December 2018