Leonne Velickovic on behalf of the Widji People/Western Australia/Anglogold Ashanti Australia Ltd
[2005] NNTTA 29
•21 April 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Western Australia/Anglogold Ashanti Australia Ltd, [2005] NNTTA 29 (21 April 2005)
Application No: WO04/207
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: 21 April 2005
Catchwords: Native title – future act – proposed grant of prospecting 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 Kevin Connell, Austwide Mining Title Management Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
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 prospecting licence P26/3034 (‘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).
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
The proposed licence comprises an area of 182.7 hectares, 31 kilometres north easterly of Kambalda in the City of Kalgoorlie-Boulder, and is overlapped 100% by the registered claim of the native title party.
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.
At a preliminary conference convened on 26 October 2004 and at which all parties were represented for the first time, the grantee party representative, Mr Kevin Connell, advised that the grantee party was considering both the 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, and the Widji Alternative Heritage Agreement (‘Widji AHA’) which is proposed by the native title party. However, at an adjourned conference on 16 November 2004 Mr Connell advised that the grantee had decided that it only wished to continue negotiations on the basis of the RSHA and therefore requested that the matter proceed to Inquiry. With the agreement of all parties directions for compliance remained as set on 30 August 2004.
On 2 March 2005 the Tribunal convened at status conference at which time Mr Connell advised that the interest in the proposed licence was to be assigned on grant to another party, Perilya Daisy-Milano Pty Ltd (‘Perilya’). An adjourned status conference was convened on 16 March 2005, at which time Mr Connell advised that Perilya had signed a deed of assumption with respect to the RSHA and again requested that the matter be determined by the Tribunal. The native title party representative was not present at this conference but was advised of the grantee party’s decision in writing on 18 March 2005 and a further reminder of the date for compliance was sent by email on 11 and 18 April 2005.
The Government party and the grantee party have complied with directions. No native title party contentions or evidence has been forthcoming to date.
On 21 April 2005 I convened a Listing Hearing, at which the Government party supported by the grantee party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The native title party representative, Mr Jerome Frewen, requested an extension of time for compliance on the basis that the Widji People had been preoccupied with claim group issues and had not had the opportunity to comply. The Government and grantee parties did not agree to this request.
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 16 November 2004 that there was no prospect of a mutually agreed outcome. This position was reiterated when it became known that the interest in the proposed licence was to be assigned to Perilya upon grant. 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 initial 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 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 East Goldfields People (whose registered native title claim overlaps the proposed licence by 93.26%) 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 East 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]). If acted upon by the Central East Goldfields native title party, this agreement should assist to ensure that sites of particular significance to the Widji claimant group are also protected.
Decision
The objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
21 April 2005
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