Leonne Velickovic on behalf of the Widji People /South Kal Mines Pty Ltd; New Hampton Goldfields Ltd/Western Australia
[2006] NNTTA 7
•3 February 2006
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People /South Kal Mines Pty Ltd; New Hampton Goldfields Ltd/Western Australia, [2006] NNTTA 7 (3 February 2006)
Application Nos: WO05/366 and WO05/372
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 (native title party)
-and-
The State of Western Australia (Government party)
-and-
South Kal Mines Pty Ltd (grantee party) (WO05/366)
-and-
New Hampton Goldfields Ltd (grantee party) (WO05/372)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 2 February 2006
Date of reasons: 3 February 2006
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – failure to comply with directions – application for adjournment of hearing refused – 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
Leonne Velickovic on behalf of Widji People/Western Australia/Kevin Michael Pavlinovich, NNTT WO05/36, [2005] NNTTA 89 (2 December 2005), Hon C J Sumner
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
grantee parties: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
Representatives of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 29 June 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E26/101 to South Kal Mines Pty Ltd and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 13 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E15/682 and E15/683 to New Hampton Goldfields Ltd and included in the notice a statement that it considered that the grant attracted the expedited procedure. The three abovementioned exploration licences are collectively referred to as the proposed licences, and the tenement applicants as the grantee parties.
On 18 July 2005, Leonne Velickovic on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 - (‘the native title party’) lodged expedited procedure objection applications WO05/366 (E26/101) and WO05/372 (E15/682 and E15/683) with the Tribunal in relation to the proposed licences.
The area, location and extent to which the proposed licences are overlapped by the native title party are as follows:
E26/101 - 5.88 square kilometres, 27 kilometres south easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;
E15/682 - 35.36 square kilometres, 15 kilometres northerly of Coolgardie in the Shire of Coolgardie, 100% overlap;
E15/683 - 11.69 square kilometres, 21 kilometres easterly of Widgiemooltha in the Shire of Coolgardie, 100% overlap.
In addition to the overlaps documented above, the registered claim of Central West Goldfields People (WC99/29) entirely overlaps E26/101 and E15/682, and the registered claim of the Ngadju People (WC99/2) entirely overlaps E15/683. No objections in relation to the proposed licences have been lodged by the Central West Goldfields People but the Ngadju People have lodged an objection in relation to E15/683 (WO05/719 – lodged 3 November 2005). WO05/719 remains active while parties negotiate about a heritage protection agreement.
The Maduwongga People’s native title claim also entirely overlaps E15/682 but no objection has been lodged and the Maduwongga claim has since been de-registered, depriving those claimants of procedural rights in relation to the proposed licence.
Relevant Facts
The Tribunal made directions on 1 August 2005 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 party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits in relation to E26/101 on or before 27 February 2005, and E15/682 and E15/683 on or before 13 March 2006. 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 an adjourned Preliminary Conference held on 23 August 2005, at which all parties were present, the representative for the grantee parties, Mr Kevin Connell, advised that the grantees were not willing to execute the heritage agreement proposed by the native title party and requested that the matter proceed to inquiry. Accordingly, and with the agreement of all parties, I approved an amendment to directions to hasten the Inquiry, requiring native title party compliance on or before 28 November 2005. Parties were advised in writing of amended dates on 19 September 2005.
On 29 November 2005 the Tribunal received email correspondence from Mr Jerome Frewen, the representative for the native title party, advising that cultural considerations precluded the scheduling of arbitral hearings or compliance with directions before March 2006. The grantee and Government parties opposed such a lengthy extension of the time for compliance on the basis of the native title party’s historically poor compliance record.
On 8 December 2005 the Government party requested an extension of the time for compliance owing to its failure to comply because of an administrative oversight on its part. All parties agreed and accordingly I amended directions on 13 December 2005 requiring Government compliance on or before 19 December 2005, grantee compliance on or before 16 January 2006 and, in recognition of Mr Frewen’s request for a more lengthy extension of time, native title party compliance on or before 30 January 2006.
The Government and grantee parties have complied with amended directions. No contentions or evidence from the native title party have been forthcoming to date.
On 2 February 2006 I convened a Listing Hearing. Mr Jerome Frewen for the native title party requested the hearing be adjourned for one week as he was not able to attend and was at another meeting. The Government party supported by the grantee parties opposed this request on the basis that nothing would be achieved by an adjournment in that based on past practice Mr Frewen may not attend anyhow and if he did, would make the same request as in previous similar matters, namely seek an extension of time to comply because his clients are occupied with Law business. I agreed with this submission and refused the adjournment. In making this decision I adopt my findings in Leonne Velickovic on behalf of Widji People/Western Australia/Kevin Michael Pavlinovich, NNTT WO05/36, [2005] NNTTA 89 (2 December 2005) at [11] including that the native title party habitually fails to comply with the Tribunal directions and that even if an extension of time were granted compliance is highly unlikely. Mr Frewen has been aware of the date of the Listing Hearing since 15 December 2005 and of the exact time since 31 January 2006. Apart from an engagement at another meeting, no reason was given for his non-attendance and more importantly no specific notice of what submission he wished to make at the adjourned hearing was given.
The Government party supported by the grantee parties then made application to dismiss the objection applications pursuant to s 148(b) of the Act on the basis of non-compliance with the Tribunal’s directions by the native title party. It has been clear to the Widji native title party since at least 23 August 2005 that there was no prospect of a mutually agreed outcome. I find that the native title party has failed within a reasonable time to proceed with its objection 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 the Widji native title party habitually fails to comply with the Tribunal’s directions and I am not satisfied that there would be compliance even if further time was allowed.
I note that the grantee parties have offered executed Regional Standard Heritage Agreements for the Goldfields region to the Widji People in relation to E15/683, and to the Central West Goldfields People in relation to E26/101 and E15/682. It is apparent that the grantee parties recognise native title party concerns regarding heritage protection.
I also note for the record that the Government party has proposed extra conditions to be imposed on the grant of E26/101 and E15/682, requiring that the grantee parties, 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. A similar condition has been proposed in relation to E15/683, allowing the Ngadju People the same option. If acted upon, these agreements should assist to ensure that sites of particular significance to the Widji People are protected.
I note that in the case of E15/683, objection application WO05/719 by the Ngadju People remains active. Until such a time as that matter is determined, the Western Australian Department of Industry and Resources will not be in a position to rule on the grant or otherwise of that proposed licence
Decision
Expedited procedure objection applications WO05/366 and WO05/372 are dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
3 February 2006
0
2
0