Leonne Velickovic on behalf of the Widji People/Western Australia/Mr Peter Geoffrey Harris and Mr Timothy Benjamin Prime
[2006] NNTTA 30
•4 April 2006
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Western Australia/Mr Peter Geoffrey Harris and Mr Timothy Benjamin Prime, [2006] NNTTA 30 (4 April 2006)
Application No: WO05/615
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-
Mr Peter Geoffrey Harris and Mr Timothy Benjamin Prime (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 31 March 2006
Date of reason: 4 April 2006
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) 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 Leonie Prime
Representatives of the
Government party: Mr Greg Abbott, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
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 P15/4444 (‘the proposed licence’) to Mr Peter Geoffrey Harris and Mr Timothy Benjamin Prime (‘the grantee party’) and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.
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.
The proposed licence comprises an area of some 38.26 hectares, located 18 kilometres westerly of Kambalda in the Shire of Coolgardie, and is entirely overlapped by the registered claim of the native title party.
The registered claim of the Central West Goldfields People (WC99/29) entirely overlaps the proposed licence and is therefore also accorded the status of native title party. The Central West Goldfields People has not lodged an objection in relation to the proposed licence.
Relevant Facts
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.
The Tribunal convened a number of preliminary conferences between 15 November and 20 December 2005, none of which were attended by the grantee party. The grantee party subsequently engaged a representative, Ms Leonie Prime, who attended an adjourned preliminary conference convened by the Tribunal on 10 January 2006. At this conference Ms Prime advised that the grantee party 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, and therefore wished to proceed directly to inquiry. The Government party concurred and applied for the compliance dates to be brought forward. The Government party also requested that as the native title party representative, Mr Jerome Frewen, was not in attendance at this conference the matter should be heard at a directions hearing once Mr Frewen had returned from leave, on the basis that he was unlikely to agree with the application to have dates brought forward. Ms Prime supported this request. Mr Frewen was advised of these developments in writing on 25 January 2006.
At a Directions hearing convened on 17 February 2006, Ms Prime again applied to have compliance dates for all parties brought forward to allow the matter to proceed to inquiry as soon as practicable. The Government party supported the application to bring compliance dates forward. Mr Frewen was not in attendance at the directions hearing and has made no application in relation to the grantee party’s request. As I have pointed out in previous decisions (for example Leonne Velickovic on behalf of the Widji People/Western Asutralia/Regalwest Pty Ltd, NNTT WO05/621, [2006] NNTTA 25 (24 March 2006)) 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)).
Accordingly I approved the grantee’s application, requiring native title party compliance on or before 20 March 2006. This is 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. Mr Frewen was advised of my decision in writing on 17 February 2006.
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.
On 31 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. Mr Frewen did not attend the hearing and made no application to extend the time for compliance.
It has been clear to the Widji native title party since at least 25 January 2006 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 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
Expedited procedure objection application WO05/615 is dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
4 April 2006
0
2
0