Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited; International Goldfields Ltd; Hayes Mining Pty Ltd

[2006] NNTTA 15

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited; International Goldfields Ltd; Hayes Mining Pty Ltd, [2006] NNTTA 15 (17 February 2006)

Application Nos:      WO05/186; WO05/189; WO05/245

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

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

-and-

The State of Western Australia (Government party)

-and-

Cazaly Resources Limited (grantee party in WO05/186)

-and-

International Goldfields Pty Ltd (grantee party in WO05/189)

-and-

Hayes Mining Pty Ltd (grantee party in WO05/245)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  17 February 2006

Catchwords:             Native title – future act – proposed grant of exploration and prospecting licences – expedited procedure objection applications – failure to proceed with applications – failure to comply with directions – objection applications 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 Shannon McMahon, McMahon Mining Titles Pty Ltd

Representatives of the      

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. In early 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant the following exploration and prospecting licences (‘the proposed licences’):

• E25/268 to International Goldfields Ltd  (notification date 9 March 2005);

• P26/3296 to Cazaly Resources limited (notification date 23 March 2005); and

• P24/3948 to Hayes Mining Limited (notification date 20 April 2005).

Included in each of the notices is a statement that the Government party considered that the grant attracted the expedited procedure. 

1. Hayes Mining Pty Ltd is a wholly owned subsidiary of Cazaly Resources Limited and Cazaly Resources Limited has entered into an agreement to purchase E25/268 from International Goldfields Ltd that will become effective on grant of that tenement. Consequently, Cazaly Resources Limited is effectively the sole grantee for the proposed licences.

2. On 9 May 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 the expedited procedure objection applications with the Tribunal in relation to E25/268 and P26/3296.  On 12 May 2005 a further expedited procedure objection was lodged by him in respect of P24/3948.

3. The area of the proposed licences, and the extent to which they overlap the Widji native title claim boundary are as follows:

• E25/268 – 26.51 square kilometres, 26 kilometres easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

• P26/3296 –  136.11 hectares, 19 kilometres easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap; and

• P24/3948 – 121.37 hectares, 44 kilometres north westerly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap.         

1. The native title claims of the Central West Goldfields People (WC99/29, registered 4 October 1999) and the Maduwongga People also overlap the proposed licences by 100%.  On 23 March 2005 the Central West Goldfields People lodged an expedited procedure objection application with the Tribunal in relation to E25/268 (designated WO05/103).  This objection was withdrawn, agreement having been reached between the native title and grantee parties, on 17 January 2006.  The Maduwongga People did not lodge any objection applications prior to the relevant closing dates and this 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 24 May 2005 in respect of WO05/186 and WO05/189 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 matters WO05/186 and WO05/189 the native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 7 November 2005. Directions in identical form that required native title party compliance by 19 December 2005 were made on 31 May 2006 in respect of WO05/245. In all cases the directions contained 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 5 July 2005, the then grantee representative, Mr Nathan McMahon, stated that he was unwilling to sign an Alternative Heritage Agreement with the native title party and stated that the grantee would rely on the Government party’s contentions.  

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.  However, the then grantee representative requested that compliance dates remain as initially set for all matters as he would be travelling overseas and would be unable to attend to the inquiry process  earlier than then scheduled.

4. In October 2005, Mr Shannon McMahon took over representation of the grantee party in these matters.  Given the fact that compliance dates were then imminent in all matters, no application was then made to hasten the progress of matters to inquiry.  However, on 24 November 2005, the grantee representative requested that compliance dated be aligned for all matters.  The native title party representative objected to the compliance dates being set for December 2005, on the basis that the native title party would be engaged in Law Business during the relevant period and requested instead that compliance dates be put out to late February 2006.  Neither the Government nor grantee parties were willing to accede to this request.

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 native title party had not complied by the date originally set in WO05/186 and WO05/189 (ie 21 November 2005).  Had the native title party done so, its prospective involvement in Law Business would have presented no difficulty.  Further the date proposed (19 December 2005) allowed some further time for that compliance burden to be met and acted to cure the default in these matters.

6. As the Tribunal has pointed out on many previous occasions, it is incumbent on the native title party to start preparation for the inquiry at the earliest possible time.  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. Accordingly, I re-set Directions to bring all matters into line, requiring that the native title party lodge its contentions and evidence by 19 December 2005.  The native title party representative was advised of this decision and the relevant date in writing on the same day.

7. The Government party has complied with directions and as noted above, the grantee party intends to rely on the Government party’s contentions.  No submissions from the native title party have been forthcoming to date.

8. On 17 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.

9. I find that the native title party has failed within a reasonable time to proceed with the applications 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.

10. I note that the Government party will include as a condition of the grant an option for the grantee party and Central West Goldfields native title party to enter into a RSHA, which if acted upon should also assist to ensure that sites of particular significance to the Widji people are protected.

Decision

1. Expedited procedure objection applications WO05/186; WO05/189 and WO05/245 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

17 February 2006