Leonne Velickovic on behalf of the Widji People/Western Australia/Duketon Consolidated Ltd; MPI Nickel Pty Ltd

[2006] NNTTA 37

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Duketon Consolidated Ltd; MPI Nickel Pty Ltd, [2006] NNTTA 37 (21 April 2006)

Application Nos:       WO05/818     WO05/865

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-

Duketon Consolidated Ltd (grantee party) (WO05/818)

-and-

MPI Nickel Pty Ltd (grantee party) (WO05/865)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  21 April 2006

Catchwords:             Native title – future act – proposed grant of prospecting 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 Brenton Parry, Western Tenement Services

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 16 November 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P26/3301, P26/3302, P26/3303, P26/3304, P26/3306, P26/3313 and P26/3314 to Duketon Consolidated Ltd and P27/1584 to MPI Nickel Pty Ltd and included in the notice a statement that the Government party considered that the grants attracted the expedited procedure.

2. On 12 November 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 those prospecting licences the Government party proposes to grant to Duketon Consolidated Ltd (WO05/818).

3. On 11 December 2005, Leonne Velickovic on behalf of the Widji People lodged an expedited procedure objection application with the Tribunal in relation to P27/1584 (WO05/865).  Henceforth the prospecting licences applications will be referred to as the proposed licences, and the licence applicants as the grantee parties.

4. The proposed licences associated with WO05/818 comprise areas of between 90.98 hectares and 199.49 hectares, and are situated 30 to 33 kilometres north-easterly of Kambalda in the City of Kalgoorlie-Boulder.  P27/1584 (WO05/865) comprises an area of some 1.58 hectares, 44 kilometres northerly of Kalgoorlie, also in the City of Kalgoorlie-Boulder.  Each of the proposed licences is overlapped entirely by the Widji native title party’s claim.

5. The registered claim of the Central West Goldfields People (WC99/29) also entirely overlaps proposed licences the subject of WO05/818, while the registered claim of the Central East Goldfields People (WC99/30) entirely overlaps P27/1584.  Each of these claim groups is therefore also accorded the status of native title party but neither has lodged objections in relation to the proposed licences.

Relevant Facts

1. The Tribunal made directions on 6 December 2005 (WO05/818) and 20 December 2005 (WO05/865) 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 both objections the native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 17 July 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 preliminary conferences in both matters on 14 February 2006 at which time the representative for both grantee parties, Mr Brenton Parry, advised that his clients had forwarded signed Regional Standard Heritage Agreements (‘RSHA’) for the Goldfields region to the Goldfields Land and Sea Council, which represents the Central East and Central West Goldfields People.  The RSHA is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection.  Mr Parry advised that he would seek instructions from his clients regarding negotiations over an alternative heritage agreement with the Widji native title party.  However, at adjourned preliminary conferences on 7 March 2006 Mr Parry advised that his clients did not wish to enter into alternative agreements and requested that both matters proceed to Inquiry as expeditiously as possible.  The representative for the native title party, Mr Jerome Frewen, requested that directions stand as initially set and accordingly a Directions Hearing was scheduled to establish timeframes for compliance.

3. I convened the Directions Hearing on 10 March 2006 at which Mr Frewen reiterated his request that directions remain as initially set, while Mr Parry requested that dates be brought forward according to 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)).  Mr Frewen submitted that the directions should remain as set because the full period of time was required for preparation of contentions and evidence and that to hasten the dates would be denying the Widji native title party natural justice.

4. I considered Mr Frewen’s application and the history of previous matters involving the Widji native title party and remained unconvinced that the native title party would comply with directions even if the full time were permitted.  The Widji native title party has a long history of failure to comply with directions regardless of the period of time allowed, despite the fact that it is incumbent upon a native title party to be prepared to support it’s objection application or at least to take active steps to obtain necessary evidence from the date of lodgement.  The prescribed application form (‘Form 4’) clearly requires that a description of the type of evidence that the objector will produce be outlined (at para 8 – Form 4) and the objection application in both matters indicated that the native title party was in a position to provide, inter alia, evidence of interference with community presence and activities, evidence as to the particular significance of the land concerned, and evidence as to the native title party’s concerns regarding heritage protection and the likelihood of interference with significant sites and areas.  The principal purpose of an objection application is to seek a determination that the expedited procedure should not apply not to seek agreement with grantee parties.  Mr Frewen is well aware that while the Tribunal allows latitude if genuine negotiations towards agreement are taking place, the timeframes for compliance will be shortened in the event that negotiations fail.  Accordingly I refused Mr Frewen’s request that timeframes for compliance remain as initially set and with the agreement of the Government and grantee parties directed that Government party submissions be filed on or before 7 April 2006 and those of the native title party on or before 14 April 2006.  Mr Parry confirmed that the grantee parties would rely on government party submissions.

5. The Government party has complied with amended directions.  No submissions from the native title party have been forthcoming to date.

6. On 21 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 made written application on 20 April 2006 that the Listing Hearing be adjourned for one week as he would be unavailable but I did not approve this request on the basis that he has been aware of the date of the hearing since 10 March 2006. Further, Mr Frewen made no application to extend the time for compliance but even if such an application was granted I am not convinced that compliance would occur for the reasons outlined in para [9] above.

7. It has been clear to the Widji native title party since at least 7 March 2006 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.

1. I also note that an agreement for heritage protection has been offered to the Central West and Central East Goldfields native title parties by the grantee parties (where the proposed licences overlap their respective claim areas) and that the Government party will include as a condition of the grant an option for the grantee parties and Central West and Central East Goldfields native title parties to enter into Regional Standard Heritage Agreements.  If the Government party’s option is taken up the RSHA should also assist to ensure that sites of particular significance to the Widji native title party are protected in the subject areas.

Decision

1. Expedited procedure objection applications WO05/818 and WO05/865 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

21 April 2006