Leonne Velickovic on behalf of the Widji People/Western Australia/Elizabeth Dobaj; Frederick Saunders

[2006] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Elizabeth Dobaj; Frederick Saunders, [2006] NNTTA 38 (21 April 2006)

Application Nos:       WO05/33, WO05/306, WO05/617

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-

Elizabeth Dobaj (grantee party) (WO05/306)

-and-

Frederick Saunders (grantee party) (WO05/33, WO05/617)

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 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:  Ms Elizabeth Dobaj 

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 26 January 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P15/4673 and P15/4674 to Frederick Saunders and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

2. On 1 June 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P15/4482 to Elizabeth Dobaj and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

3. On 21 September 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P15/4738 to Frederick Saunders and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

4. 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 as follows:

• In relation to P15/4673 and P15/4674 on 26 January 2005 (W05/33);

• In relation to P15/4482 on 7 June 2005 (WO05/306); and

• In relation to P15/4738 on 17 October 2005 (WO05/617).

Henceforth the prospecting licence applications will be referred to as the proposed licences, and the licence applicants as the grantee parties.

1. The area, location and extent to which each of the licences is overlapped by the claim of the Widji native title party is as follows:

• P15/4673 – 6.53 hectares, 34 kilometres south westerly of Kambalda in the Shire of Coolgardie, 100% overlap;

• P15/4674 – 2.99 hectares, 29 kilometres south westerly of Kambalda in the Shire of Coolgardie, 100% overlap;

• P15/4482 – 198.95 hectares, 10 kilometres west of Widgiemooltha in the Shire of Coolgardie, 100% overlap;

• P15/4738 – 0.89 hectares, 10 kilometres north westerly of Widgiemooltha in the Shire of Coolgardie, 100% overlap.

1. The registered claim of the Central West Goldfields People (WC99/29) entirely overlaps each of the proposed licences and is therefore also accorded the status of native title party.  The Central West Goldfields People have not lodged an objection in relation to P15/4482 or P15/4738.  The Central West Goldfields People lodged an objection in relation to the proposed licences P15/4673 and P15/4674 (WO05/93), however this objection was withdrawn on 18 October 2005 following agreement between the parties.

Relevant Facts

1. The Tribunal made directions on 15 February 2005 (WO05/33), 22 June 2005 (WO05/306) and 2 November 2005 (WO05/617) 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 WO05/33 the native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 26 September 2005. The date for provision of such submissions in relation to WO05/306 was set at 30 January 2006, and in relation to WO05/617 was set at 22 May 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. In relation to WO05/306 the Tribunal convened a number of preliminary conferences between 5 July 2005 and 6 September 2005, none of which were attended by the grantee party.  The grantee party representative, Ms Elizabeth Dobaj, subsequently attended an adjourned preliminary conference on 13 September 2005 at which she advised that the grantee party was in the process of executing 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, and that the grantee party was considering taking the matter to inquiry.  The native title party representative, Mr Jerome Frewen, was not in attendance but was advised of the outcome of the conference in writing on 13 September 2005.

3. At an adjourned status conference in relation to WO05/306 convened on 27 October 2005 Ms Dobaj confirmed that she had executed an RSHA with the Central West Goldfields People and did not wish to negotiate an agreement with the Widji native title party.  As a consequence Ms Dobaj requested that the matter proceed to inquiry.  Ms Dobaj also advised that she had been engaged to represent the second grantee party, Mr Frederick Saunders, in relation to WO05/33 and WO05/617, and requested that these matters also go to inquiry. She stated that Mr Saunders had executed a non-corporate prospector’s agreement in favour of the Central West Goldfields People and did not wish to negotiate any further.  Mr Frewen was not in attendance, and was advised of these developments in writing on 4 November 2005.

4. On 30 November 2005 a Tribunal case officer advised parties that Mr Frewen had opposed any hastening of the time for compliance with directions on the basis that the native title party would be engaged in cultural activities until approximately 1 March.  He requested that these matters be adjourned until after that date and that at least four weeks be allowed for any compliance that may arise after that time.  Ms Dobaj and the representative of the Government party did not oppose this request and on this basis I approved a variation to directions, requiring native title party compliance on or before 11 April 2006.  Parties were advised of my decision in writing on 3 February 2006.

5. The Government party has complied with directions and I infer that the grantee parties will rely on those submissions. 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 was not available to attend the hearing but made written application on 20 April 2006 that it be adjourned for one week. The Government and grantee parties did not support this application and I refused the adjournment request on the basis that Mr Frewen had been aware of the Listing Hearing date for some time and given the history of Widji objections further delay would be unlikely to result in the lodgement of native title party contentions or evidence.

7. It has been clear to the Widji native title party since at least 27 October 2005 that there was no prospect of a mutually agreed outcome in relation to each of the applications.  Further, it is incumbent upon the native title party to ensure that it is in a position to support its objections from the date the applications are lodged. 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 compliance dates being set to take into account its engagement in cultural activities between December 2005 and March 2006 and 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.

8. I also note that an agreement for heritage protection has been offered to the Central West Goldfields People by both of the grantee parties and that the Government party will include as a condition of the grant an option for the grantee parties and Central West Goldfields People to enter into a RSHA.  If taken up by that claim group the RSHA should also assist to ensure that sites of particular significance to the Widji native title party are protected.

Decision

1. Expedited procedure objection applications WO05/33, WO05/306 and WO05/617 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

21 April 2006