Raymond William Ashwin & Others on behalf of Wutha and Peter Romeo Gianni

[2019] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha and Peter Romeo Gianni [2019] NNTTA 4 (6 February 2019)

Application No:    WO2018/0423

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 -

Peter Romeo Gianni

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	6 February 2019

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 Peter Romeo Gianni

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 30 May 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 E36/913 to Peter Romeo Gianni. 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 Peter Romeo Gianni.

2. On 3 June 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 22 October 2018, Mr Gianni requested directions be set in the inquiry as he had reviewed the draft agreement provided by Wutha and wished to progress the inquiry. I made directions the 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 on 23 October 2018.  The State complied with their directions on 6 November 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 3 December 2018.  Neither contentions nor evidence were received from the Wutha claim group on or by that date. 

3. On 6 December 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, 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 11 December 2018 asking them to provide any response to the dismissal request received from the State by no later than the close of business 18 December 2018, for my consideration.  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 E36/913 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
6 February 2019