Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Ltd

[2005] NNTTA 55

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Ltd, [2005] NNTTA 55 (8 August 2005)

Application No:         WO05/24

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 the Widji People - WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Cazaly Resourced Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  8 August 2005

Catchwords:  Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure within a reasonable time to proceed with 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 party:  Mr Nathan McMahon, Cazaly Resources Ltd

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 17 November 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P16/2261 and P16/2267 (‘the proposed licences’) to Cazaly Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, are future acts which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licences overlap the Widji, the Central West Goldfields and the Maduwongga People (WC99/9) native title claims at 100%. The area and location of the proposed licences are as follows:

   • P16/2261 – 7.68 hectares, 32 kilometres north of Coolgardie in the shire of Coolgardie;

• P16/2267 – 121.35 hectares, 30 kilometres north of Coolgardie in the shire of Coolgardie;

1. On 26 January 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 an expedited procedure objection application with the Tribunal in relation to the proposed licences.

2. On 30 December 2004 Elizabeth Sambo on behalf of the Central West Goldfields People – Native Title Claim No. WC99/29 registered on 4 October 1999 lodged expedited procedure objection applications with the Tribunal in relation to the proposed licences (WO04/375 and WO04/376).  The objections were withdrawn on 8 February 2005 as an agreement had been reached between the grantee and the Central West Goldfields People.

3. No objection applications were lodged by the Maduwongga People in relation to the proposed licences.

Relevant facts

1. The Tribunal made directions on 15 February 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 18 July 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.

2. At a preliminary conference convened on 29 March 2005, in which all parties were present for the first time, the grantee representative stated that the grantee had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) in favour of the Central West Goldfields People which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection.  The native title party representative indicated that the terms of the RSHA were unacceptable to his client.  The grantee party representative stated that there was no opportunity for an agreement and requested that the matter proceed to inquiry.

3. The government party complied with the directions by the due date and the grantee party has indicated its intention to rely on these submissions.  To date, no contentions or evidence from the native title party has been forthcoming.

4. On 8 August 2005 I convened a Listing Hearing, at which the Government 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, 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.

5. It has been clear to the Widji native title party since 29 March 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 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 Widji native title party habitually fails to comply with the Tribunal’s directions.

6. I note for the record that the Government party has also proposed an extra condition to be imposed on the grant of the proposed licences, requiring that the grantee party, if so requested by the Central West Goldfields People within ninety days of the grant of the proposed licences, 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 licences.  If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji People are protected.  In any event I also note that the Central West native title party has reached agreement with the grantee party, which based on previous practice I can infer includes provision for Aboriginal heritage protection.

Decision

1. The objection application WO05/24 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
8 August 2005