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

[2006] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Plasia Pty Ltd, [2006] NNTTA 31 (4 April 2006)

Application No:        WO05/622

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-

Plasia Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            30 March 2006
Date of reasons:              4 April 2006

Catchwords:             Native title – future act – proposed grant of amalgamation - exploration 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 Angela Plummer, 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 APPLICATION

Background

1. On 5 October 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant amalgamation - exploration licence AM-E27/310 (‘the proposed licence’) to Plasia Pty Ltd (‘the grantee party’) and included in the notice a statement that the Government party considered that the grant attracted the expedited procedure.

2. 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.

3. The proposed licence comprises an area of some 9.96 hectares, located 28 kilometres North Easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, and is entirely overlapped by the registered claim of the native title party. 

4. The registered claim of the Central East Goldfields People (WC99/30) entirely overlaps the proposed licence and is therefore also accorded the status of native title party. The Central East Goldfields People has not lodged an objection in relation to the proposed licence.

Relevant Facts

1. 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 6 June 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. The Tribunal convened a preliminary conference on 15 November 2005 at which the grantee party representative, Mr Alf Valentine, advised that he had had difficulty contacting his client and requested that the matter be adjourned. The representative of the native title party, Mr Jerome Frewen, also requested that the matter be adjourned, on the basis that the native title party would be engaged in cultural activities during the relevant time.

3. At an adjourned preliminary conference convened on 14 February 2006 the grantee party representative 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 grantee party representative 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 and the representative for the native title party, Mr Jerome Frewen, did not oppose the application.

4. On the basis of this agreement I set compliance dates 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. Accordingly directions for compliance were amended, requiring native title party compliance on or before 13 March 2006.

5. The Government party has complied with directions and the grantee party representative advised in writing on 2 March 2006 that the grantee party will rely on those submissions.  No submissions from the native title party have been forthcoming to date.

6. On 30 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 attending the hearing and made no application to extend the time for compliance.

7. It has been clear to the Widji native title party since at least 14 February 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.

8. I also note that an agreement for heritage protection has been offered to the Central East 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 East 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

1. Expedited procedure objection application WO05/622 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

4 April 2006