Leonne Velickovic on behalf of the Widji People/Western Australia/Rand Exploration NL, Kevin Arthur Pownall, Steven Anthony Tomich

[2005] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Rand Exploration NL, Kevin Arthur Pownall, Steven Anthony Tomich, [2005] NNTTA 19 (8 April 2005)

Application No:        WO04/285

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-

Rand Exploration NL, Kevin Arthur Pownall, Steven Anthony Tomich (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 licences – 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 22 September 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 P26/3047 and P26/3075 (‘the proposed licences’) to Rand Exploration NL, Kevin Arthur Pownall and Steven Anthony Tomich (‘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 18 October 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 area, location and extent to which the proposed licences are overlapped by the registered claim of the native title party are as follows:

   • P26/3047 – 22.85 hectares, three kilometres westerly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap
   • P26/3075 – 178.28 hectares, three kilometres south westerly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap

2. The Tribunal initially made directions on 3 November 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 23 May 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 16 November 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.  Mr Miller requested that directions be amended to enable an inquiry to be conducted as soon as practicable and this request was supported by the Government party.  The native title party representative, Mr Jerome Frewen, requested that dates for compliance remain as set.  An adjourned preliminary conference was convened on 30 November 2004 at which time Mr Frewen submitted that Widji Law Business would hamper the native title party’s ability to submit contentions.  On 11 February 2005 I convened a Directions Hearing and after hearing from parties amended directions to require native title party compliance on or before 11 March 2005.

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

5. 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.

6. This matter has been in inquiry since the objection document was lodged on 18 October 2004 and it has been clear to the native title party since 16 November 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.

7. I note that in the case of these proposed licences, objection applications have also been received from the Central West Goldfields native title party (WO04/385 and WO04/386).  Until such a time as those matters are determined, the Western Australian Department of Industry and Resources will not be in a position to make the grant of the proposed licences.

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