Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Charles Saunders

[2005] NNTTA 67

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Charles Saunders, [2005] NNTTA 67 (19 September 2005)

Application No:        WO05/188

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-

Frederick Charles Saunders (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            16 September 2005
Date of reasons:              19 September 2005

Catchwords:  Native title – future act – proposed grant of prospecting licence – expedited procedure 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

Representative of the

native title party:               Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

grantee party:  Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 9 March 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P26/3252 (‘the proposed licence’) to Frederick Charles Saunders (‘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).

2. The proposed licence is 187.58 hectares and located 37 kilometres northeast of Kambalda in the City of Kalgoorlie-Boulder. It overlaps the Widji, Central West Goldfields (WC99/29) and Central East Goldfields (WC99/30) People's native title claims at 74%, 11% and 89% respectively.

3. On 9 May 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 licence.

4. No objection applications were lodged by the Central West or Central East Goldfields People in relation to the proposed licence.

Relevant facts

1. The Tribunal made directions on 24 May 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 7 November 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.

1. At the preliminary conference convened on 7 June 2005, which was not attended by the native title party representative, the grantee party representative stated that the grantee had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection. On this basis the grantee party would not consider the Alternative Heritage Agreement preferred by the native title party and requested that the matter proceed to inquiry.  The native title party representative was informed of the grantee party's request by a Tribunal officer via email on the same day.

2. At the adjourned preliminary conference of 28 June 2005, at which all parties were present for the first time, the grantee party reasserted it position and request to proceed with inquiry.  In accordance with the Tribunal's new procedure for matters where parties do not wish to negotiate but wish to proceed immediately to an inquiry, the directions were amended requiring native title party compliance by 8 August 2005 and a Listing Hearing on 18 August 2005.  Parties were advised of the amended directions at the conference.

3. On 9 August 2005, the Government party advised it had not made its submissions due to an administrative error and therefore requested that directions be amended for all parties.  On 10 August 2005, I amended directions requiring native title party compliance by 30 August 2005 and a listing hearing on 16 September 2005.  Parties were notified of the amended directions via email on the same day. The grantee and Government parties complied before the due dates stipulated in the amended directions. To date, no contentions or evidence from the native title party has been forthcoming.

4. On 16 September I convened a Listing Hearing, at which the grantee party supported by 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.

1. It has been clear to the native title party since 7 June 2005 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. I note that the Widji native title party habitually fails to comply with the Tribunal’s directions.

2. 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 East 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 East 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.

Decision

1. The objection application WO05/188 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
19 September 2005