Leonne Velickovic on behalf of the Widji People/Western Australia/Anglogold Ashanti Australia Ltd

[2006] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Anglogold Ashanti Australia Ltd, [2006] NNTTA 35 (21 April 2006)

Application No:        WO05/444

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

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

-and-

The State of Western Australia (Government party)

-and-

Anglogold Ashanti Australia Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            13 April 2006
Date of reasons:              21 April 2006

Catchwords:             Native title – future act – proposed grant of exploration licences – expedited procedure objection application – failure to proceed with application – failure to comply with directions – objection application 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

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

Representative of the

grantee party:  Mr Marcus Walter, M & M Walter Consulting

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 27 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E15/773 and E15/795 (‘the proposed licences’) to Anglogold Ashanti Australia Ltd (‘the grantee party’) and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

2. On 1 August 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 an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. The area and location and of the proposed licences, both of which are located in the Shire of Coolgardie, are as follows:

• E15/773 – 120.12 square kilometres, 34 kilometres easterly of Kambalda; and

• E15/795 – 14.66 square kilometres, 16 kilometres easterly of Kambalda.

The registered claim of the native title party overlaps E15/773 to an extent of 86.73 per cent, and entirely overlaps E15/795.

1. The registered claim of the Ngadju People (WC99/2) entirely overlaps the proposed licences and is therefore also accorded the status of native title party. The Ngadju claimant has not lodged an objection in relation to the proposed licences.

Relevant Facts

1. The Tribunal made directions on 16 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 on or before 27 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.

2. Negotiations took place between the native title party and grantee party (through Independence Group to whom the proposed licences are to be transferred upon grant) but without success.  The grantee party has executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) which it submits is considered by the Government party to be sufficient indication of the grantee party’s positive attitude toward heritage protection.

3. The Government party has complied with directions and I infer that the grantee party will rely on those submissions.  Neither submissions nor applications from the native title party for a variation to the directions have been forthcoming to date.

4. On 13 April 2006 I convened a Listing Hearing at which the Government party supported by the grantee party made an application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with the Tribunal’s directions by the native title party. Mr Frewen did not attend the hearing, provided no reasons for non-compliance and made no application to extend the time.

5. It has been clear to the Widji native title party since at least 23 February 2006 that there was no prospect of a mutually agreed outcome, and apparent some four months before that date that an Inquiry was likely.  Further, it is incumbent upon native title party to ensure that it is in a position to support its objection or at least to take active steps to obtain the necessary evidence from the date the application is lodged.  I find that the native title party has failed within a reasonable time to proceed with the application 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.

6. I also note that an agreement for heritage protection has been offered to the Ngadju native title party by the grantee party and that the Government party will include as a condition of the grant an option for the grantee party and Ngadju native title party to enter into a RSHA.  If taken up by that claim group, which I note overlaps both proposed licences entirely, the RSHA should also assist to ensure that sites of particular significance to the Widji native title party are protected.

Decision

1. Expedited procedure objection application WO05/444 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

21 April 2006