Leonne Velickovic on behalf of the Widji People/Western Australia/Maincoast Pty Ltd

[2005] NNTTA 92

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Maincoast Pty Ltd, [2005] NNTTA 92 (8 December 2005)

Application No:         WO05/191

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-

Maincoast Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  8 December 2005

Catchwords:              Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – objection applications 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 Shannon McMahon, McMahon Mining Title Services 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 4 February 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P26/3200, P26/3201, P26/3202 and P26/3203 (‘the proposed licences’) to Maincoast Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 9 May 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 and location of the proposed licences, all of which are located in the City of Kalgoorlie-Boulder, are as follows:

• P26/3200 – 178.77ha, 14 kilometres west of Kalgoorlie.

  • P26/3201 – 176.86ha, 14 kilometres west of Kalgoorlie.         

• P26/3202 – 181.46ha, 16 kilometres west of Kalgoorlie.         

  • P26/3203 – 186.16ha, 17 kilometres west of Kalgoorlie.         

The Widji native title party overlaps the proposed licences 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 licences.

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 10 October 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.

2. At an adjourned preliminary conference convened on 5 July 2005, the then grantee representative, Mr Nathan McMahon, stated that he was unwilling to negotiate with the native title party, and requested that the matter proceed to inquiry.  Mr McMahon 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’) 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, Mr Nathan McMahon requested that compliance dates remain as initially set as he would be travelling extensively on business and unable to attend hearings for this matter any earlier than currently scheduled. The native title party representative and Government party agreed to this request.

4. 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.

5. On 8 November 2005, the Tribunal was advised that Mr Shannon McMahon had taken over representation of the grantee in this matter. 

6. On 8 December 2005 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 non-compliance with the Tribunal’s 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.

7. It has been clear to the Widji native title party since at least 5 July 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 and I am not satisfied that there would be compliance even if further time was allowed.

8. I also note for the record that the Government party has 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 not more than ninety days after the grant of the proposed licences, shall within thirty days of the request execute a regional standard heritage agreement in favour of the Central West Goldfields People.  If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji People are protected.

Decision

1. Expedited procedure objection application WO05/191 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
8 December 2005