Leonne Velickovic on behalf of the Widji People/Linda Champion on behalf of the Central West Goldfields People/Western Australia/Murchison Resources Pty Ltd
[2005] NNTTA 78
•21 October 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Linda Champion on behalf of the Central West Goldfields People/Western Australia/Murchison Resources Pty Ltd, [2005] NNTTA 78 (21 October 2005)
Application Nos: WO04/323 and WO04/368
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 the Widji People - WC98/27 (Widji native title party) (WO04/323)
-and-
Linda Champion on behalf of the Central West Goldfields People - WC98/29 (Central West Goldfields native title party) (WO04/368)
-and-
The State of Western Australia (Government party)
-and-
Murchison Resources Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal of
Widji objection: 8 August 2005
Date of dismissal of Central
West Goldfields Objection: 21 October 2005
Date of reasons: 21 October 2005
Catchwords: Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure within a reasonable time to proceed with objection applications – failure to comply with directions – objection applications dismissed.
Legislation:Native Title Act 1993 (Cth) ss 29, 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
On 20 October 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P26/3104, P26/3105 and P26/3106 (‘the proposed licences’) to Murchison Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licences overlap the Widji, the Central West Goldfields and the Maduwongga People (WC99/9) native title claims at 100%. The area and location of the proposed licences are as follows:
P26/3104 – 121.16 hectares, 14 kilometres north of Kalgoorlie in the City of Kalgoorlie-Boulder;
P26/3105 – 120.88 hectares, 16 kilometres north of Kalgoorlie in the City of Kalgoorlie-Boulder;
P26/3106 – 111.79 hectares, 15 kilometres north of Kalgoorlie in the City of Kalgoorlie-Boulder.
On 15 November 2004 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 licences (WO04/323).
On 30 December 2004 Elizabeth Sambo on behalf of the Central West Goldfields People – Native Title Claim No. WC99/29 registered on 4 October 1999 - ('the Central West Goldfields native title party') also lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences (WO04/368).
No objection application was lodged by the Maduwongga People, whose native title determination application was removed from the Register of Native Title claims on 12 September 2005.
Relevant facts
The Tribunal made directions on 29 November 2004 (for WO04/323) and 13 January 2005 (for WO04/368) 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 Widji and Central West Goldfields native title parties were to provide statements of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 20 June 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.
At a preliminary conference convened on 21 February 2005, the grantee party representative indicated that the grantee had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) in favour of the Maduwongga People which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection and requested that the matters proceed to inquiry.
On 23 March 2005, the Central West Goldfields People submitted a Statement of Contentions in another matter not the subject of this inquiry that also referred to proposed licences P26/3104 and P26/3105. This was brought to Ms Sambo’s attention in the inquiry relating to expedited procedure objection application WO04/159 (Linda Champion on behalf of the Central West Goldfields People/Western Australia/South Kal Mines Pty Ltd, WO04/159 [2005] NNTTA 42 (7 June 2005) Hon CJ Sumner).
The government party did not comply with the directions by the due date and submitted a request that the directions be amended to allow further time to comply. On 12 July 2005, directions were amended by consent allowing all parties additional time. This re-set native title party compliance to 22 July 2005, giving the Central West Goldfields People an opportunity to correct the submissions already lodged.
The Government party has complied with the amended directions and the grantee party has indicated its intention to rely on these submissions. To date, no contentions or evidence from either of the native title parties have been forthcoming.
On 8 August 2005 I convened a listing hearing, at which the Government party supported by the grantee party made application to dismiss the Widji objection application WO04/323 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.
The Central West Goldfields native title party had also not complied in relation to WO04/368 but the grantee and native title parties’ representatives indicated that there was now a possibility of resolution by agreement and with the consent of all parties I adjourned this objection to allow further negotiations.
At a listing hearing on 9 September 2005 in relation to WO04/368, I was advised that agreement could not be reached and I re-set directions, requiring native title party compliance by 23 September 2005.
A further listing hearing was convened by the Tribunal on 6 October 2005, by which time native title party compliance was overdue. However, in recognition of the native title party representative’s recurring ill-health, the grantee party representative and Government party agreed to a further short amendment to directions to allow her until 20 October 2005 to comply.
On 17 October 2005, Ms Sambo was reminded by the Tribunal’s Senior Caseflow Manager of the impending compliance date and consequences of non-compliance via email and a follow up telephone conversation, during which Ms Sambo affirmed her intention to submit contentions in this matter. At a hearing on 21 October 2005, I agreed to the Government and grantee parties’ application to dismiss the Central West Goldfields objection (WO04/368) pursuant to s 148(a). The native title party representative was not present despite attempts by the Tribunal to contact her by telephone.
It has been clear to the Widji native title party since 21 February 2005 and the Central West Goldfields native title party initially on 21 February 2005 and later since 9 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 its 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 for the record that the Government party will impose an extra condition on the grant of the proposed licences, 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 licences. If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji and Central West Goldfields Peoples are protected.
Decision
The objection applications WO04/323 and WO04/368 are dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
21 October 2005
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