Leonne Velickovic on behalf of the Widji People/Western Australia/Mark Andrew Cedro

[2006] NNTTA 23

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Mark Andrew Cedro, [2006] NNTTA 23 (10 March 2006)

Application No:        WO05/619

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 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Mark Andrew Cedro (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  10 March 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 Fred Smith

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. 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 P26/3215 (‘the proposed licence’) to Mark Andrew Cedro (‘the grantee party’) and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

2. On 17 October 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.

3. The proposed licence comprises an area of some 199.93 hectares, located 24 kilometres northerly of Kambalda in the City of Kalgoorlie-Boulder, and is entirely overlapped by the registered claim of the native title party.  The registered claim of the Central West Goldfields People also entirely overlaps the proposed licence, but this native title party has not lodged an objection in relation to the proposed licence.

Relevant Facts

1. The Tribunal made directions on 2 November 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 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. The Tribunal convened an adjourned preliminary conference on 22 November 2005, at which the grantee party, Mr Mark Cedro, advised that he 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, but that he would be willing to consider the alternative heritage agreement preferred by the Widji People (‘WAHA’).  On 5 December 2005, the Tribunal received email correspondence from Mr Cedro advising that he now wished to proceed to Inquiry on the basis that the WAHA was not acceptable, and this advice was reiterated by Mr Cedro’s representative, Mr Fred Smith, at a further adjourned preliminary conference on 13 December 2005, at which time it was proposed that the dates for compliance be hastened to expedite the Inquiry.  The representative for the native title party, Mr Jerome Frewen, was not available for this conference but when advised of the request following the conference, opposed the shortened time for compliance on the basis that the native title party would be engaged in cultural activities until April 2006.

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 that agreement cannot be reached (see Procedures under the Right to Negotiate Scheme – 27 January 2005 (website: paras 3.8.2, 3.9.3)).  I considered Mr Frewen’s application that this not occur because 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 timing proposed by the native title party would have allowed a further four months period in which it might comply in circumstances where it had at least some time from 2 November 2005 to comply or at least to commence steps to comply without any impediments caused by Law Business.  A further important factor in this case is that the native title party habitually fails to comply with the Tribunal’s directions and I am not satisfied that there would be compliance even if the entire time requested was allowed.  

4. On the basis of these considerations I set compliance dates in accordance with Tribunal practice that compliance with directions be required by the Government party three weeks after the objection closing date (or three weeks after an Inquiry has been requested in circumstances where the closing date has passed), and that compliance by the native title party follow one week after that.  Accordingly directions for compliance were amended, requiring that the native title party lodge its contentions and evidence on or before 20 February 2006.  The native title party representative was advised of the relevant compliance date in writing on 23 December 2005.

5. The Government party has complied with directions and I infer that the grantee party will rely on those submissions.  No submissions from the native title party have been forthcoming to date.

1. On 10 March 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 non-compliance with the Tribunal’s directions by the native title party.

2. Apart from the initial request in December 2005, Mr Frewen has made no submissions requesting additional time to comply and has provided no explanation for the native title party’s failure to comply. If he had made submission for an extension of time to comply because of Law Business, as he has in other objection matters, I would have rejected them for the same reasons outlined above in para [6].

3. It has been clear to the Widji native title party since at least 13 December 2005 that there was no prospect of a mutually agreed outcome.  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.

4. I also note that an agreement for heritage protection has been offered to the Central West Goldfields native title party by the grantee party and 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.  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 application WO05/619 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

10 March 2006