Raymond William Ashwin & Others on behalf of Wutha and Vanessa Erica Thomas

[2018] NNTTA 57

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha and Vanessa Erica Thomas

[2018] NNTTA 57 (19 September 2018)

Application No:  WO2017/0862

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 -

Vanessa Erica Thomas

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	19 September 2018

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: Ms Vanessa Erica Thomas

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 P38/4430-S to Vanessa Erica Thomas without requiring Ms Thomas 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 Ms Thomas.

3. 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 then 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 18 May 2018, 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 State provided their initial compliance, copying in all parties, however there was no subsequent compliance by the Wutha claim group.

2. Despite other communication being received from the Wutha claim group representative on this matter, neither contentions nor evidence were received, either by the due date, or up to the present time. 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.  Ms Thomas supported the request for dismissal.

3. The Tribunal wrote to the representative of the Wutha claim group, asking for any further comment they may have, given I was now considering the matter for dismissal. Mr Harrington-Smith wrote to advise simply that Ms Thomas had the Wutha draft agreement, but she did not want to negotiate with Wutha.  The Tribunal did not receive any further reasons regarding non-compliance with directions. 

4. 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. While the Tribunal recognises that, in a practical sense, a period of negotiation often leads to resolution of an expedited procedure matter (for example, by agreement between parties, and/or withdrawal of the objection), the focus of the expedited procedure is not on negotiations between parties. It is not a ‘right to negotiate’ process, and this has been outlined in many previous decisions of the Tribunal. Once an objection is lodged, it is important the applicant progress that objection, in compliance with the Tribunal’s directions or any other process as outlined by the Tribunal.

5. 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 prospecting licence P38/4430-S is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
19 September 2018