Western Desert Lands Aboriginal Corporation on behalf of its members v Peter Andrew Wiltshire

[2015] NNTTA 61

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation on behalf of its members v Peter Andrew Wiltshire and Another [2015] NNTTA 61 (14 December 2015)

Application No:                  WO2015/0556

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Western Desert Lands Aboriginal Corporation on behalf of its members (native title party)

-and-

The State of Western Australia  (Government party)

-and-

Peter Andrew Wiltshire   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Mr JR McNamara, Member

Place:Brisbane

Date of dismissal:              14 December 2015

Date of reasons:                14 December 2015

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 Matthew Kinder, Western Desert Lands Aboriginal Corporation

Representative of the        

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

Representative of the

grantee party:  Mr Peter Wiltshire

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 2 April 2015, 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 E45/4512 to Mr Peter Andrew Wiltshire (“grantee party”) without requiring Mr Wiltshire or the State, to negotiate with the Western Desert Lands Aboriginal Corporation. The area of the proposed licence is covered by the native title party determination WCD2002/002.

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 negotiation. That is, they say the grant of this licence can be made expeditiously, without negotiation between the Western Desert Lands Aboriginal Corporation, the State, and Mr Wiltshire.

3. Western Desert Lands Aboriginal Corporation lodged an objection with the National Native Title Tribunal against the application of the expedited procedure to the grant of the licence on 25 June 2015. I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry to determine whether the licence can be granted in such an expedited way.

Should the inquiry proceed or should the matter be dismissed?

1. On 13 October 2015, Mr Wiltshire advised the Tribunal he wanted this matter to  proceed to an inquiry.  Member Helen Shurven 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 Western Desert Lands Aboriginal Corporation was directed to provide a statement of contentions, documentary evidence and witness statements, verified where possible by affidavits, on or before 24 November 2015. 

2. Neither contentions nor evidence were received from the Western Desert Lands Aboriginal Corporation by 24 November 2015.  On 25 November  2015, the State wrote to the Tribunal and the Western Desert Lands Aboriginal Corporation representative requesting the objection be dismissed because the Western Desert Lands Aboriginal Corporation had failed, within a reasonable time, to proceed with the objection or comply with Tribunal directions.

3. On 25 November 2015, the Tribunal wrote to the Western Desert Lands Aboriginal Corporation and Mr Wiltshire, asking them to respond to the State's request to dismiss.  Parties were given until 1 December 2015 to respond.  Mr Wiltshire wrote to the Tribunal on 1 December 2015 supporting the States request to dismiss this objection. No response was received from the Western Desert Lands Aboriginal Corporation. 

4. In Teelow v Page (at [13]) the Tribunal set out the principles applicable when considering dismissal of an objection application, which I have had regard to in this matter.  In particular, 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 Western Desert Lands Aboriginal Corporation 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 Western Desert Lands Aboriginal Corporation have been given sufficient opportunity to comply with directions set by Member Shurven, 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 E45/4512 is dismissed, according to s 148(b) of the Native Title Act 1993 (Cth).

Mr JR McNamara
Member
14 December 2015