Leonne Velickovic on behalf of the Widji People/Western Australia/New Hampton Goldfields Ltd; South Kal Mines Pty Ltd

[2006] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/New Hampton Goldfields Ltd; South Kal Mines Pty Ltd, [2006] NNTTA 17 (23 February 2006)

Application Nos:       WO05/308; WO05/309

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Leonne Velickovic on behalf of Widji People – WC98/27 (Widji native title party)

-and-

The State of Western Australia (Government party)

-and-

New Hampton Goldfields Ltd (grantee party in WO05/308)

-and-

South Kal Mines Pty Ltd (grantee party in WO05/309)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  23 February 2006

Catchwords:             Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure to proceed with applications – 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 Kevin Connell, Austwide Mining Title Management Pty Ltd

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 18 May 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant the following prospecting licences (‘the proposed licences’):

• P15/4637; P15/4368; P15/4369; P15/4370; P15/4371 and P15/4384 to New Hampton Goldfields Ltd; and

• P15/4548 to South Kal Mines Pty Ltd.

Included in each of the notices is a statement that the Government party considered that each grant attracted the expedited procedure. 

1. South Kal Mines Pty Ltd and New Hampton Goldfields Ltd are wholly owned subsidiaries of Harmony Gold Ltd. Consequently, there is effectively a single grantee for the proposed licences.

2. On 7 June 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 expedited procedure objection applications with the Tribunal in relation to the proposed licences (designated WO05/308 (New Hampton Goldfields applications) and WO05/309 (South Kal Mines application) respectively).

3. The area and location of the proposed licences are as follows:

• P15/4637– 150.69 hectares, 18 kilometres north of Coolgardie in the Shire of Coolgardie;

• P15/4368 – 102.48 hectares, 17 kilometres north of Coolgardie in the Shire of Coolgardie;

• P15/4369 – 165.5 hectares, 16 kilometres north of Coolgardie in the Shire of Coolgardie;

• P15/4370– 127.68 hectares, 18 kilometres north of Coolgardie in the Shire of Coolgardie;

• P15/4371 – 115.18 hectares, 16 kilometres north of Coolgardie in the Shire of Coolgardie;

• P15/4384 – 142.94 hectares, 13 kilometres north west of Coolgardie in the Shire of Coolgardie and

• P15/4548 – 199.19 hectares, 10 kilometres south of Coolgardie in the Shire of Coolgardie.

1. The Widji native title party overlaps each of the proposed licences by 100%. The native title claims of the Central West Goldfields People (WC99/29) and the Maduwongga People (WC99/9) 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 licence.

Relevant Facts

1. The Tribunal made directions in both objection applications on 22 June 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 16 January 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. At a preliminary conference convened by the Tribunal on 5 July 2005 and attended by all parties, the grantee representative, Mr Kevin Connell, stated that he was unwilling to sign an Alternative Heritage Agreement with the native title party.  Mr Connell also confirmed that the grantee had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) in favour of the Central West Goldfields People, 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.  In response to an application from the native title party that this not occur, the grantee and Government representatives agreed that compliance dates remain as initially set for both matters to ensure that the native title party had the optimal time within which to comply.  However, both reserved the right to make application to bring compliance dates forward in the future.

4. On 19 December 2005 the native title party representative, Mr Jerome Frewen, made application for Directions compliance dates to be put out to at least March 2006 on the basis that his clients would be engaged in Law Business until February 2006 and therefore be unable to comply.  Neither the grantee nor Government parties were prepared to agree to put compliance dates out by the extent requested, but both were prepared to agree to compliance dates in early February 2006. 

5. I considered the submission that the native title party’s involvement in Law Business represents an impediment to compliance and the other parties’ responses. 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 three months in which it might comply in circumstances where the native title party has already had some five months (from 8 July 2005 to 5 December 2005) to comply without any impediments caused by Law Business.  As the native title party habitually fails to comply with the Tribunal’s directions, I am not satisfied that there would be compliance even if the entire time requested was allowed.  

6. On the basis of these considerations I set compliance dates in accordance with the counter proposal made by the grantee and Government parties, requiring that the native title party lodge its contentions and evidence in both matters by 13 February 2006.  The native title party representative was advised in writing of this decision along with the relevant compliance and Listing Hearing dates in writing on 23 December 2005.

7. The Government party complied with directions and the grantee party has indicated it intends to rely on those submissions.  No submissions from the native title party have been forthcoming to date.

8. On 23 February 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 a failure to proceed with the application and non-compliance with the Tribunal’s directions by the native title party. The native title party representative, Mr Jerome Frewen, was not in attendance but on the afternoon prior made a request that the hearing be postponed for one week. I did not agree to this request as Mr Frewen has been on notice since 23 December 2005 that the Listing Hearing would occur on this day and received reminder notices on 25 January, 20 February and 22 February 2006.

9. Apart from the initial request in December 2005, Mr Frewen has made no submissions requesting additional time to comply and has provided no explanation of the failure to comply. If he had made submission for an extension of time to comply for Law Business reasons, as he has in other objection matters, I would have rejected them for the same reasons outlined above in para [10].

10. It has been clear to the Widji native title party since 5 July 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.

11. 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 native title party are protected.

Decision

1. Expedited procedure objection applications WO05/308 and WO05/309 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

23 February 2006