Leonne Velickovic on behalf of the Widji People/Western Australia/New Hampton Goldfields Ltd/South Kal Mines Pty Ltd
[2005] NNTTA 27
•15 April 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Western Australia/New Hampton Goldfields Ltd/South Kal Mines Pty Ltd, [2005] NNTTA 27 (15 April 2005)
Application Nos: WO04/183 WO04/206
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 (native title party)
-and-
The State of Western Australia (Government party)
-and-
New Hampton Goldfields Ltd (WO04/183) (grantee party)
-and-
South Kal Mines Pty Ltd (WO04/206) (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 14 April 2005
Date of reasons: 15 April 2005
Catchwords: Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure within a reasonable time to proceed with objection applications – failure to comply with directions – objection applications 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 John Clarke, Wanati Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 2 June 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 P25/1686 and P25/1688 to New Hampton Goldfields Ltd (‘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).
On 28 July 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P15/4663 to South Kal Mines Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 16 August 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 expedited procedure objection applications with the Tribunal in relation to P25/1686 and P16/1688 (WO04/183) and P15/4663 (WO04/206). Henceforth, the affected prospecting licences will collectively be referred to as the proposed licences.
Relevant facts
The area, location and extent to which the proposed licences are overlapped by the registered claim of the native title party is as follows:
- P25/1686 and P25/1688 – 67.66 hectares and 112.35 hectares respectively, 34 kilometres south easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;
- P15/4663 – 13.81 hectares, 16 kilometres north westerly of Kambalda in the Shire of Coolgardie, 100% overlap.
The proposed licences are also subject to objection applications by the Central West Goldfields native title party whose registered claim also encompasses 100% of the area of the proposed licences (WO04/109 – P26/1686; WO04/159 – P15/4663). Until these matters are finalised the Government party will not be in a position to grant the proposed licences
In relation to WO04/183, the Tribunal made directions on 31 August 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 31 January 2005. Directions in relation to WO04/206 were made on 30 August 2004, requiring native title party compliance on or before 28 March 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.
At a preliminary conference for both matters, convened on 21 September 2004 and at which all parties were represented, the grantee party representative Mr John Clarke advised that the grantee party in both cases had executed a Regional Standard Heritage Agreement (‘RSHA’), and was not prepared to negotiate on the basis of the Widji Alternative Heritage Agreement (‘Widji AHA’) which is proposed by the native title party. New Hampton Goldfields Ltd and South Kal Mines Pty Ltd are wholly owned by Harmony Gold and essentially form the same grantee party. Mr Clarke requested that the matters proceed directly to Inquiry and that both matters be dealt with concurrently. Accordingly on 24 September 2004 directions were amended with the agreement of all parties to reflect the later dates for compliance, 28 March 2005 in the case of the native title party.
A status conference was convened on 23 February 2005 at which time parties were reminded of the due dates for compliance. A further email reminder was also sent to all parties on 12 April 2005.
The Government party has complied with directions. No native title party contentions or evidence has been forthcoming to date.
On 14 April 2005 I convened a Listing Hearing, at which the Government party supported by the grantee party made application to dismiss the objection applications 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, requested a further extension of time in which to comply in the light of an extension which I granted to the Central West Goldfields native title party in relation to their expedited procedure objections over the same tenements, on the basis that his clients had been preoccupied with claim group issues unrelated to these objections,.
I do not accept Mr Frewen’s assertion that the Widji native title party should be afforded the same leniency granted to the Central West Goldfields native title party. The Central West Goldfields native title party is partially compliant in that it has submitted a statement of contentions in relation to its objections and the Government and grantee parties have agreed to an extension of time for full compliance in those matters. I was and remain prepared to determine those matters on the basis of documents received to date. Another distinguishing feature between the Widji and Central West Goldfields native title parties which justify a different approach to permitting more time to comply is that the Widji native title party has a much worse history of non-compliance than that of the Central West Goldfields native title party. From experience in previous matters I am satisfied that the Central West Goldfields native title party have made more conscientious efforts to comply.
These Widji objections have been in inquiry since the objection documents were lodged on 16 August 2004 and it has been clear to the native title party since 21 September 2004 that there was no prospect of a mutually agreed outcome. The time for compliance was not shortened but rather extended to enable the matters to be dealt with concurrently. 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.
In relation to WO04/206, I note for the record that the Government party has proposed an extra condition to be imposed on the grant of the proposed licence, requiring that the grantee party, if so requested by the Central West Goldfields 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 Central West Goldfields People in respect of the area covered by the proposed licences (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]). In the event that the result of the inquiries into the objections lodged by the Central West Goldfields native title party is that the expedited procedure is attracted this condition, if acted upon by the Central West Goldfields native title party, should assist to ensure that sites of particular significance to the Widji claimant group are also protected.
Decision
The objection applications are dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
15 April 2005
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