Leonne Velickovic on behalf of the Widji People; Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cloud Aviation Pty Ltd

[2005] NNTTA 95

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People; Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cloud Aviation Pty Ltd, [2005] NNTTA 95 (15 December 2005)

Application Nos:       WO05/37 and WO05/92

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Leonne Velickovic on behalf of Widji People – WC98/27 (Widji native title party) (WO05/37)

and

Linda Champion on behalf of the Central West Goldfields People – WC99/29 (Central West Goldfields native title party) (WO05/92)

-and-

The State of Western Australia (Government party)

-and-

Cloud Aviation Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal

WO05/37:  10 November 2005

Date of dismissal

WO05/92:  15 December 2005

Date of reasons:              15 December 2005

Catchwords:              Native title – future act – proposed grant of prospecting licence – expedited procedure objection applications – failure to comply with Directions – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(b)

Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner

Representative of the

Widji native title party:      Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

Central West Goldfields
native title party:               Ms Elizabeth Sambo

Representative of the

grantee party:  Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

Representative of the        

Government party:            Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 26 January 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P24/3751 (‘the proposed licence’) to Cloud Aviation Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 26 January 2005, Leonne Velickovic on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 - (‘the Widji native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. On 23 March 2005, Linda Champion on behalf of the Central West Goldfields People – Native title Claim No. WC99/29 registered 4 October 1999 (‘the Central West Goldfields native title party’) also made an expedited procedure objection application in relation to the proposed licence.

4. The proposed licence comprises an area of 200 hectares, 27 kilometres northerly of Kalgoorlie in the City of Kalgoorlie Boulder.  The registered claims of the Central West Goldfields and Widji native title parties overlap the proposed licence by 100%.  The native title claim of the Maduwongga People also overlaps the proposed licence by 100% but this group has not lodged an objection and the claim has since been de-registered, depriving the Maduwongga People of procedural rights in relation to the proposed licence.

Relevant facts

1. The Tribunal made directions on 15 February 2005 (WO05/37) and 8 April 2005 (WO05/92) for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title parties were to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 26 September 2005. The directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

2. At the first preliminary conference convened on 26 April 2005 in relation to WO05/92, the grantee party representative stated that the grantee had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection.  The representative for the Central West Goldfields native title party, Ms Elizabeth Sambo, advised that the RSHA was not acceptable and on this basis parties agreed that WO05/92 should be determined by the Tribunal according to the timetable set by the directions of 8 April 2005.

3. At an adjourned preliminary conference in relation to WO05/37 convened on 28 June 2005, the representative for the Widji native title party, Mr Jerome Frewen, advised that Widji did not find the RSHA acceptable.  However, rather than requesting that the matter be put to inquiry the grantee party agreed to consider the Widji alternative heritage agreement (‘Widji AHA’). 

4. With the consent of all parties, directions for both matters were amended on 25 August 2005 to bring both objection applications onto the same timetable, the native title parties’ compliance then being required on or before 24 October 2005.

5. A status conference in relation to WO05/37 was convened on 7 September 2005, at which time the grantee party representative advised that the grantee would not accept the Widji AHA, and requested that this objection now proceed to inquiry on the dates set for all matters on 25 August 2005.  

6. The Government party has complied with directions and I infer from the lack of submissions from the grantee party that it intends to rely on the Government party’s contentions.  No submissions from either native title party were forthcoming by the then due date.

7. On 10 November 2005 I convened a listing hearing in relation to both matters, at which the grantee party supported by the Government party made application to dismiss the Widji objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The Widji native title party representative, Mr Jerome Frewen, was not in attendance and made no submissions prior to the hearing requesting additional time to comply and has provided no explanation of the failure to comply. I dismissed the objection application WO05/37 on the basis of the Widji native title party’s non-compliance, effective from the 10 November 2005.

8. At this hearing the Central West Goldfields native title party representative, Ms Elizabeth Sambo,  provided an explanation for the failure of that native title party to comply and sought additional time in which to lodge contentions and supporting evidence.  After hearing the other parties, I agreed to this request, re-setting compliance for this native title party to 28 November 2005.

9. On 15 December 2005, by which time the Central West Goldfields native title party was due to have complied, I convened a further Listing Hearing. As no submissions had been received from this native title party, the Government party supported by the grantee party made application to dismiss the Central West Goldfields objection application (WO05/92) pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The Central West Goldfields native title party representative, Ms Elizabeth Sambo, was not in attendance and made no submissions prior to the hearing requesting additional time to comply and has provided no explanation for the continued failure to comply.

10. It has been clear to the Central West Goldfields native title party since 26 April 2005 and the Widji native title party since at least 7 September 2005 that there was no prospect of a mutually agreed outcome.  I find that the native title parties have failed within a reasonable time to proceed with their objections and to comply with the Tribunal’s directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.  The reasons provided in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner (at [12]-[13]) are applicable in this matter. I note that both native title parties habitually fail to comply with the Tribunal’s directions although the record in the case of the Central West Goldfields native title party is a little better than that of the Widji native title party.

11. I also note for the record that the Government party has proposed an extra condition to be imposed on the grant of the proposed licence, requiring that the grantee party, if so requested by the Central West Goldfields People within ninety days of the grant of the proposed licences, shall within thirty days of the request execute the RSHA for the Goldfields region in favour of the Central West Goldfields People in respect of the area covered by the proposed licence.  If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji and Central West Goldfields People are protected.

Decision

1. Expedited procedure objection applications WO05/37 and WO05/92 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
15 December 2005