Leonne Velickovic on behalf of the Widji People/Western Australia/Melville Raymond Dalla-Costa

[2005] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Melville Raymond Dalla-Costa, [2005] NNTTA 31 (29 April 2005)

Application No:        WO04/8

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-

Melville Raymond Dalla-Costa (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            28 April 2005
Date of reasons:              29 April 2005

Catchwords:  Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure within a reasonable time to proceed with 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

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 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 Melville Raymond Dalla-Costa

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 11 February 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P26/3234 and P26/3235 (‘the proposed licences’) to Melville Raymond Dalla-Costa (‘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. On 11 February 2004 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. On 19 April 2004 Elizabeth Sambo on behalf of the Central West Goldfields claimant group – Native Title Claim No. WC99/29 registered on 4 October 1999 - also lodged an expedited procedure objection application (WO04/39).  To date this objection remains unresolved.

Relevant facts

1. The area, location, and percentage to which the grantee party’s proposed licences are overlapped by the Widji registered native title claim are as follows:

   • P26/3234 – 124.86 hectares, 12 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;
   • P26/3235 – 187.92 hectares, 12 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

2. The Tribunal made directions on 24 February 2004 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 affidavit on or before 8 October 2004. 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.

3. At a preliminary conference convened on 23 March 2004 and at which all parties were present for the first time, the grantee party indicated 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 was prepared to consider the Widji Alternative Heritage Agreement (‘Widji AHA’) which is proposed by the native title party.  However, at an adjourned preliminary conference on 6 April 2004 the grantee party advised that he no longer wished to continue negotiations, and preferred the RSHA. Mr Dalla-Costa therefore requested that the matter proceed to Inquiry.  With the agreement of all parties, the compliance timetable remained as set on 30 August 2004.

4. On 4 May 2004 the Tribunal convened a further adjourned Preliminary Conference at which time the grantee party advised that he was again prepared to consider the Widji AHA and the matter was further adjourned to allow time for this to occur.  Between 18 May and 3 August 2004, the Tribunal convened a series of conferences in an attempt to gauge the grantee party’s position in relation to the Widji AHA, which Mr Dalla-Costa did not attend.   However, in telephone conversations with Tribunal officers outside this forum, the grantee party indicated he required further time to decide whether to execute the Widji AHA or again request that the objection proceed to inquiry.

5. On 3 September 2004, Directions were amended to allow the grantee party some additional time to consider his position.  This re-set native title party compliance to 27 October 2004.  Two further extensions to compliance dates were granted by me on 23 December 2004 and 14 March 2005, with the native title party’s contentions and evidence ultimately falling due on 14 April 2005.

6. Mr Dalla-Costa was again unavailable for conferences scheduled between 20 October and 15 December 2004.  However, on 22 December 2004 the grantee party did attend an adjourned Status Conference convened by the Tribunal and requested that the matter proceed to inquiry as he was unwilling to enter into the Widji AHA.

7. The Government party has complied with directions and the grantee party has indicated his intention to rely on these submissions.  No native title party contentions or evidence has been forthcoming to date.

8. On 28 April 2005 I convened an adjourned Listing Hearing, at which the Government party supported by the grantee 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.

9. This objection has been in inquiry since the objection document was lodged on 11 February 2004 and it has been clear to the native title party since 22 December 2004 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 its objection and to comply with the Tribunal’s initial 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.

10. I note for the record that the Government party has also proposed an extra condition to be imposed on the grant of the proposed licence, requiring that the grantee party, if so requested by the Widji People  within ninety days of the grant of the proposed licence, shall within thirty days of the request execute the RSHA for the Goldfields region in favour of the Widji People in respect of the area covered by the proposed licence (see Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [24]). If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji claimant group are protected.

Decision

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

Hon C J Sumner
Deputy President
29 April 2005