Leonne Velickovic on behalf of the Widji People/Western Australia/Carrick Gold Ltd

[2006] NNTTA 13

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Carrick Gold Ltd, [2006] NNTTA 13 (16 February 2006)

Application No:        WO05/441

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 (Widji native title party)

-and-

The State of Western Australia (Government party)

-and-

Carrick Gold Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  16 February 2006

Catchwords:             Native title – future act – proposed grant of prospecting licence – 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 Nicholas Parry, Tenement Administration Services

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 22 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P27/1673 (‘the proposed licence’) to Carrick Gold Ltd (‘the grantee party’) and included in the notice a statement that it 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 Widji native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. The area of the proposed licence, which is located in the City of Kalgoorlie-Boulder, is 29.76ha. It is located 50 kilometres North East of Kalgoorlie.

4. The Widji native title party overlaps the proposed licence by 100%. The native title claims of the Central East Goldfields People (WC99/30) and the Maduwongga People (WC99/9) also overlap the proposed licences by 100%.  Neither the Central East Goldfields nor Maduwongga People lodged objections prior to the closing date.  The Maduwongga People’s native title claim has since been de-registered, depriving this group of procedural rights in relation to the proposed licence.

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. At an adjourned preliminary conference convened on 6 September 2005, the grantee representative, Mr Clive Miller, stated that he was unwilling to sign an Alternative Heritage Agreement with the native title party.  Mr Miller also confirmed that the grantee had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) in favour of the Central East Goldfields People, which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection. 

3. It is now the Tribunal’s practice to bring compliance dates forward to eliminate the standard 16 week negotiating period in matters, such as this, where it is clear from the outset that agreement cannot be reached. The native title party representative did not attend the adjourned preliminary conference and, despite being advised of the outcome by the Tribunal, offered no comment or submissions. However in another matter (WO05/440) he objected on behalf of the native title party to the dates for inquiry being brought forward, as the native title party would be commencing Law Business during the relevant period. In that matter the native title party representative also stated that the native title party does not deal with inquiry matters prior to the s 29 notice closing date for objections.

4. I convened a directions hearing on 16 September 2005 that, despite prior notice, the native title party representative did not attend.  During this hearing, the grantee and the Government party representative reiterated the request that compliance dates be brought forward on the basis that agreement could not be reached and resolution by inquiry was inevitable. Prior to making a decision on the question of compliance dates, I formally considered the submissions made by the native title party representative during the Preliminary Conference in WO05/440. 

5. In respect of the submission that the native title party’s involvement in Law Business represents an impediment to compliance, the Tribunal accepts that accommodation can be made for legitimate claims of the native title party for particular traditional or cultural activities. However, in this case the dates proposed would have set native title party compliance to January 2006, which allowed nearly four months in which the native title party might comply.  In addition, 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.

6. In respect of the submission that the native title party does not turn its mind to compliance ahead of the closing date, the Tribunal does not accept that this is a valid argument. It is incumbent on the native title party to start preparation for the inquiry at the earliest possible time. The Tribunal has pointed out on many previous occasions, including a number of prior dismissals pursuant to s 148(b), that the native title party should take steps to ensure that evidence is collected in a timely manner. This may require the native title party giving attention to the preparation of materials much earlier than the closing date.

7. On the basis of these considerations I brought compliance dates forward for all parties, requiring that the native title party lodge its contentions and evidence by 9 January 2006.  The native title party representative was advised in writing of this decision and the relevant date in writing on the same day.

8. The Government and grantee parties have complied with directions.  No submissions from the native title party have been forthcoming to date.

9. On 16 February 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 a failure to proceed with the application and non-compliance with the Tribunal’s directions by the native title party. The native title party representative, Mr Jerome Frewen, was not in attendance and made no submissions prior to the hearing requesting additional time to comply and has provided no explanation of the failure to comply. If he had made submission for an extension of time for Law Business reasons, as he has in other objection matters, I would have rejected them for the same reasons outlined above in paras [9]-[10].

10. It has been clear to the Widji native title party since 6 September 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 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.

11. I also note that an agreement for heritage protection has been entered into between the Central East Goldfields native title party and the grantee party which should also assist to ensure that sites of particular significance to the Widji native title party are protected.

Decision

1. Expedited procedure objection application WO05/441 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

16 February 2006