Leonne Velickovic on behalf of the Widji People/Western Australia/Colin Douglas Zappelli

[2006] NNTTA 12

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Colin Douglas Zappelli, [2006] NNTTA 12 (16 February 2006)

Application No:         WO05/440

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-

Colin Douglas Zappelli (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 Alf Valentine, Austwide Mining Title Management Pty Ltd

Representatives of the      

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 27 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P25/1729 (‘the proposed licence’) to Colin Douglas Zappelli (‘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 53.04ha. It is located 28 kilometres East of Kalgoorlie.  

4. The Widji native title party overlaps the proposed licence by 100%.  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%.  Neither the Central West 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 Robin Humberston, stated that he was unwilling to sign an Alternative Heritage Agreement with the native title party.  Mr Humberston also stated that he would rely on the Government party’s contentions and confirmed 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. 

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. On being made aware of this, the native title party representative objected to the dates for inquiry being brought forward, as the native title party would be commencing Law Business during the relevant period. 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. 

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 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.

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. Mr Frewen, for the native title party, requested another month to comply on the basis that his clients had been occupied with Law Business for the past two months. I declined Mr Frewen’s request for similar reasons to those outlined above (paras [9] – [10]). It has been clear to the Widji native title party since at least 6 September 2005 that there was no possibility of a mutually agreed outcome. There is nothing to suggest that Mr Frewen has taken steps to gather evidence to comply with the directions even when Law Business was not an issue. Further, the Federal Court has said that the Tribunal should deal with expedited procedure objections in a timely manner.

10. 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.

1. 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 also protected.

Decision

1. Expedited procedure objection application WO05/440 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

16 February 2006