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

[2005] NNTTA 39

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/AngloGold Ashanti Australia Ltd, [2005] NNTTA 39 (1 June 2005)

Application No:        WO04/208

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:            26 May 2005
Date of reasons:              1 June 2005

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure within a reasonable time to proceed with objection application – failure to comply with directions – objection application 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

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 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 Warren Steward, AngloGold Ashanti Australia Ltd

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 11 August 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E26/104 (‘the proposed licence’) to Anglogold Ashanti Australia Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

2. On 16 August 2004 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.

Relevant facts

1. The proposed licence comprises an area of 2.93 square kilometres, 23 kilometres easterly of Kambalda in the City of Kalgoorlie-Boulder, and is overlapped 100% by the registered claim of the native title party.

2. The proposed licence is also overlapped by the following registered native title claimants and each of these also has the status of native title party:

• Ngadju People (WC99/2) – 16.48% overlap

• Central West Goldfields People (WC99/29) – 83.52% overlap

1. On 13 December 2004 Ollan Dimer on behalf of the Ngadju claimant group –registered on 28 September 2000 - also lodged an expedited procedure objection application (WO04/350).  This objection was withdrawn following agreement on 11 January 2005.  The Central West Goldfields People have not lodged an objection with respect to the proposed licence.

2. The Tribunal made directions on 30 August 2004 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 affidavit on or before 11 April 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.

3. The grantee party has 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.  It considered but was not prepared to accept the Widji Alternative Heritage Agreement (‘Widji AHA’) proposed by the native title party, something known to the native title party on 26 October 2004.  After consideration a common heritage agreement between the Widji People and Central West Goldfields People was also rejected by the grantee party on 27 March 2005.

4. Government party submissions were received by 22 April 2005 and the grantee party’s statement of contentions on 29 April 2005.  Because of late amendments to Government party’s contentions, parties agreed to the native title party having until 23 May 2005 for compliance.  Neither contentions nor evidence have been forthcoming to date despite written reminders of the date for compliance sent on 2, 20 and 23 May 2005.

5. On 26 May 2005 at a Listing Hearing, on application by the Government party supported by the grantee party, I dismissed the objection application pursuant to s 148(b) of the Act. The native title party representative, Mr Jerome Frewen, was not in attendance, made no submissions prior to the hearing requesting additional time to comply and provided no reason for non-compliance.

6. This objection has been in inquiry since the objection document was lodged on 16 August 2004 and it has been clear to the native title party since 26 October 2004 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 native title party habitually fails to comply with the Tribunal’s directions.

1. I note for the record that the Government party has also 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 licence, 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 (see Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [24]). Because of the Central West Goldfields claimant group’s significant overlap with the proposed licence (83.52%), if acted upon, this agreement should assist to ensure that sites of particular significance to the Widji claimant group are also protected.

Decision

1. The objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
1 June 2005