Leonne Velickovic on behalf of the Widji People/Western Australia/Noble Pacific Ltd

[2005] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Noble Pacific Ltd, [2005] NNTTA 20 (8 April 2005)

Application No:         WO04/192

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-

Noble Pacific Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  8 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

Representative of the

native title party:               Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

grantee party:  Mr Clive Miller, Tenement Administration Services

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 30 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 licence P27/1646 (‘the proposed licence’) to Noble Pacific 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).

2. 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 an expedited procedure objection application with the Tribunal in relation to the proposed licence.

Relevant facts

1. The proposed licence comprises an area of 143.08 hectares, 50 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, and is overlapped 100% by the Widji registered native title claim.

2. 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 28 February 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.

3. At a preliminary conference convened on 21 September 2004, at which all parties were represented, the grantee party representative Mr Clive Miller advised that the grantee party had executed a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region, and because the native title party did not accept this agreement, wished to proceed to Inquiry.  Parties agreed that directions for compliance should remain as set.

4. A status conference was convened on 19 January 2005 at which the native title party was unrepresented.  Mr Miller requested that directions be amended to allow the inquiry to be conducted as soon as practicable.  However, the Government party foresaw difficulties in meeting an earlier compliance date and because the native title party was not available to give its consent or otherwise it was agreed that dates would remain as previously scheduled.

5. The Government party and the grantee party have complied with directions.  No native title party contentions or evidence has been forthcoming to date.

6. On 8 April 2005 I convened a Listing Hearing, at which the native title party was unrepresented despite written notification of the hearing date on 18 March 2005 and again on 5 April 2005. 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.

7. This matter has been in inquiry since the objection document was 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.  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.

8. I note for the record that the grantee party and the Central East Goldfields claimant group who are also a native title party in respect of the whole of this tenement area have entered into a heritage protection agreement which should assist to ensure that sites of particular significance to the Widji claimant group are also 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
8 April 2005