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

[2005] NNTTA 63

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Murchison Resources Pty Ltd, [2005] NNTTA 63 (29 August 2005)

Application No:         WO05/31

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-

Murchison Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  29 August 2005

Catchwords:  Native title – future act – proposed grant of exploration 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

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

Representative of the        

Government party:            Mr Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 15 December 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E24/112 and (‘the proposed licence’) to Murchison Resources Pty Ltd (‘the grantee party’) and asserted that the expedited procedure applied to the grant.

2. The proposed licences overlap the Widji, the Central West Goldfields and the Maduwongga People (WC99/9) native title claims at 100%. The area and location of the proposed licence is as follows:

• E24/112 – 50.96 km², 19 kilometres north of Kalgoorlie in the city of Kalgoorlie-Boulder.

1. On 26 January 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.

2. No objection applications were lodged by either the Central West Goldfields People or Maduwongga People.

Relevant facts

1. The Tribunal made directions on 15 February 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 comply on or before 15 August 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. By 26 April 2005 it became clear that no agreement could be reached between the native title party and grantee party leading to a withdrawal of the application as the Goldfields Regional Standard Heritage Agreement (RSHA) was not acceptable to the native title party who preferred their alternative agreement.

3. The Government and grantee parties complied with the directions by the due date.  No contentions or evidence from the native title party have been forthcoming despite a reminder letter being sent to its representative on 19 August 2005 which also reinforced the potential consequences for the native title party of non-compliance with the Tribunal’s directions.

4. On 25 August 2005 I convened a 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, sought further time to comply which was opposed by the other parties.

5. It has been clear to the Widji native title party since 26 April 2005 that there was no prospect of a mutually agreed outcome. Even if the requested further time was granted, given the habitual non-compliance of the Widji native title party observed by the Tribunal, it is not certain that Directions would be complied with.  I, therefore, decline the native title party’s application and find that the native title party has failed within a reasonable time to proceed with its objection 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.

6. 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 Maduwonga 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 Maduwonga 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 WO05/31 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
29 August 2005