Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Ltd
[2005] NNTTA 28
•15 April 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Ltd, [2005] NNTTA 28 (15 April 2005)
Application No: WO04/284
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-
Cazaly Resources Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 15 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 Nathan McMahon
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 22 September 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 P16/2262 (‘the proposed licence’) to Cazaly Resources 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 18 October 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 expedited procedure objection applications with the Tribunal in relation to the proposed licence.
Relevant facts
The proposed licence comprises an area of 118.18 hectares, 35 kilometres northerly of Coolgardie in the Shire of Coolgardie, and is overlapped 100% by the registered claim of the native title party.
The Tribunal made directions on 3 November 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 23 May 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 23 November 2004 and at which all parties were represented, the grantee party representative, Mr Nathan McMahon, advised that the grantee party had executed the Regional Standard Heritage Agreement (‘RSHA’), and was not prepared to negotiate on the basis of the Widji Alternative Heritage Agreement (‘Widji AHA’) which is proposed by the native title party. On this basis Mr McMahon requested that the matter proceed directly to Inquiry. At an adjourned preliminary conference on 19 January 2005 Mr McMahon requested that the dates for compliance be brought forward to expedite the Inquiry process, but in the absence of native title party representation the matter was referred to a Directions Hearing before me on 18 February 2005. On this date I heard from each party on the subject of due dates for compliance and following requests from both the grantee and Government parties that dates be brought forward I amended directions to require native title party compliance on or before 18 March 2005.
On 23 March 2005 the Tribunal received a request from Mr Clyde Lannan, Government party representative, that directions be amended to permit Government party compliance by 29 March 2005. This correspondence included a request that compliance dates for each other party also be amended to ensure procedural fairness. Accordingly I granted the extension and in so doing permitted native title party compliance on or before 5 April 2005. Parties were advised of the dates for compliance by email on 24 March 2005 and a further reminder was sent by email on 14 April 2005.
The Government party has now made submissions and the grantee party has advised that it will rely on those submissions. No native title party contentions or evidence has been forthcoming to date.
On 15 April 2005 I convened a Listing Hearing, at which the native title party was unrepresented despite written notification of the date and time. The Government party supported by the grantee party made application to dismiss the objection applications pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party.
This objection has been in inquiry since the objection document was lodged on 18 October 2004 and it has been clear to the native title party since 23 November 2004 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 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 an objection (WO04/364) in relation to the same proposed licence was also lodged by the Central West Goldfields native title party. This objection was withdrawn following agreement on 8 February 2005 and I can infer from this that the Central West Goldfields People are satisfied that appropriate heritage protection measures are in place. 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 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 (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]). The existing agreement between the Central West Goldfields People and the grantee party and the Government party’s condition, if acted upon by the Central West Goldfields native title party, 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
15 April 2005
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