Raymond William Ashwin & Others on behalf of Wutha v Venus Metals Corporation Limited and Bruce Robert Legendre and Another

[2016] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin & Others on behalf of Wutha v Venus Metals Corporation Limited and Bruce Robert Legendre and Another [2016] NNTTA 11 (16 March 2016)

Application No:                  WO2015/0300

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Raymond William Ashwin (dec) & Others

on behalf of Wutha (WC1999/010)          (native title party)

-and-

The State of Western Australia  (Government party)

-and-

Venus Metals Corporation Limited  (first grantee party)

-and-

Bruce Robert Legendre   (second grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Ms H Shurven, Member

Place:Perth

Date of dismissal:              16 March 2016

Date of reasons:                16 March 2016

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) 166 FLR 266 (‘Teelow v Page’)

Representative of the        

native title party:              Mr Ron Harrington-Smith

Representatives of the      Mr Matthew Smith, Department of Mines and Petroleum

Government party:            Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee parties:                  Mr Matthew Clohessy, Emerald Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 3 December 2014, 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 E57/985 to Venus Metals Corporation Limited (‘Venus Metals’) and Bruce Robert Legendre without requiring Venus Metals and/or Mr Legendre or the State to negotiate with the Wutha native title claim group (‘the Wutha claim group’). One hundred per cent of the proposed licence overlaps 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 Venus Metals and Mr Legendre.

3. On 8 April 2015, 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. The parties attended a number of status conferences with the Tribunal, and reported they were attempting to negotiate an agreement. On 2 December 2015, the Tribunal advised parties that this matter was to proceed to an inquiry as agreement was not imminent. 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 of the licence. 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 February 2016. 

2. Neither contentions nor evidence were received from the Wutha claim group by 10 February 2016. On 11 February 2016, the State wrote to the Tribunal and all parties requesting the objection be dismissed because the Wutha claim group had failed, within a reasonable time, to proceed with the objection or comply with the Tribunal’s directions.

3. On 19 February 2016, the Tribunal wrote to all parties, including the Wutha claim group’s representative, asking them to respond to the State's request to dismiss the objection.  Parties were given until 25 February 2016 to respond, and reminded that the original directions noted the objection may be dismissed forthwith in the event of native title party non-compliance.  No response was received from the Wutha claim group’s representative.

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.

5. As at the date of this determination, no response has been received from the Wutha claim group as to why the objection should not be dismissed, nor has any request for extension of directions been received, nor any reason for non compliance.

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 E57/985 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Ms Helen Shurven
Member
16 March 2016