Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited; Image Resources NL

[2006] NNTTA 36

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited; Image Resources NL, [2006] NNTTA 36 (21 April 2006)

Application Nos:       WO05/620     WO05/624

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

-and-

IN THE MATTER of inquiries 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-

Cazaly Resources Limited (grantee party) (WO05/620)

-and-

Image Resources NL (grantee party) (WO05/624)

DECISION TO DISMISS OBJECTION APPLICATIONS

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 applications – failure to comply with directions – 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

Representative of the

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

Representative of the

grantee parties:                  Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 5 October 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E26/117 to Cazaly Resources Ltd and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

2. On 19 October 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E15/890 to Image Resources NL and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

3. On 17 October 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 with the Tribunal in relation to E26/117 (WO05/620) and E15/890 (WO05/624).  Henceforth the exploration licences applications will be referred to as the proposed licences, and the licence applicants as the grantee parties.

4. The area, location and extent to which each of the proposed licences is overlapped by the claim of the Widji native title party is as follows:

• E26/117 – 17.65 square kilometres, 33 kilometres south-easterly of Kalgoorlie in the City of Kalgoorlie-Boulder – 100% overlap; and

• E15/890 – 146.68 square kilometres, 32 kilometres southerly of Coolgardie in the Shire of Coolgardie – 4.73% overlap.

1. The registered claim of the Central West Goldfields People (WC99/29) also entirely overlaps both proposed licences and is therefore also accorded the status of native title party. The Central West Goldfields People have lodged no objections in relation to the proposed licences.

Relevant Facts

1. The Tribunal made directions on 26 October 2005 (WO05/624) and 2 November 2005 (WO05/620) for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. In relation to WO05/620 the native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 6 June 2006, and the date for provision by the native title party of similar submissions in relation to WO05/624 was set at 19 June 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. The Tribunal convened a preliminary conference on 15 November 2005 at which the representative for both grantee parties, Mr Shannon McMahon, advised that the grantees were unwilling to sign the heritage agreement proposed by the native title party and would only consider an agreement similar to that executed with the Central West Goldfields People.  Mr McMahon’s request that both objection applications proceed to Inquiry as expeditiously as possible was opposed by the representative for the native title party, Mr Jerome Frewen, and at Mr Frewen’s request, and with the agreement of all parties, a Directions Hearing was scheduled to establish timeframes for compliance.

3. Mr Frewen did not attend the Directions Hearing convened by me on 18 November 2005, despite the fact that the hearing was convened at his request.  The Government party and the grantee parties agreed that directions should be brought forward to expedite the Inquiry and in the absence of any submission, in writing or otherwise, from the native title party I approved an amendment to directions in accordance with 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 that agreement cannot be reached (see Procedures under the Right to Negotiate Scheme – 27 January 2005 (website: paras 3.8.2, 3.9.3)).  Amended directions required compliance by the Government party on or before 27 March 2006, native title party contentions and evidence on or before 3 April 2006 and those of the grantee parties on or before 10 April 2006.  Parties were advised of the amended dates for compliance and of the date for the Listing Hearing by facsimile on 21 November 2005.  On 23 November 2005 the Tribunal also wrote to Mr Frewen summarising proceedings at the Directions Hearing and drawing the native title party’s attention to Direction 5 of amended directions, which permits parties liberty to apply for a variation of directions.  No response has been forthcoming from Mr Frewen.

4. The Government party has complied with amended directions and I infer that the grantee parties will rely on those submissions.  No submissions from the native title party have been forthcoming to date.

5. On 13 April 2006 I convened a Listing Hearing at which the Government party supported by the grantee parties made an 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. Mr Frewen did not attend the hearing, provided no reasons for non-compliance and made no application to extend the time for compliance.

6. It has been clear to the Widji native title party since at least 15 November 2005 that there was no prospect of a mutually agreed outcome.  I find that the native title party has failed 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.

7. I also note that an agreement for heritage protection has been offered to the Central West Goldfields 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 parties and Central West Goldfields native title party to enter into a Regional Standard Heritage Agreement (‘RSHA’).  In the case of E15/890 I observe that the overlap with the Widji native title party is small (4.72%) and if the Government party’s option is taken up by the Central West Goldfields People the RSHA should also assist to ensure that sites of particular significance to the Widji native title party are protected in both subject areas.

Decision

1. Expedited procedure objection applications WO05/620 and WO05/624 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

21 April 2006