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

[2006] NNTTA 25

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Regalwest Pty Ltd, [2006] NNTTA 25 (24 March 2006)

Application No:         WO05/621

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)

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Regalwest Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  24 March 2006

Catchwords:              Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to proceed with 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:  Mr Nicholas Powrie, Tenement Administration Services

Representatives of the      

Government party:            Mr Greg Abbott, 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 exploration licence E27/329 (‘the proposed licence’) to Regalwest 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 29.62 square kilometres, located 57 kilometres northerly of Kalgoorlie in the City of Kalgoorlie-Boulder, and is overlapped to an extent of 4.91 per cent 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 also lodged an objection in relation to the proposed licence (WO06/38), however this objection was withdrawn on 28 February 2006 following agreement between the parties.

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 Clive Miller, 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. At a Directions hearing convened on 18 November 2005, 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. The representative for the native title party, Mr Jerome Frewen, was not available for this conference despite his request that it be convened and accordingly I approved the grantee’s application, requiring native title party compliance on or before 13 March 2006. This is 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. Mr Frewen was advised of my decision in writing on 23 November 2005.

3. On 20 February 2006 Mr Frewen gave written notice that he opposed the shortened time for compliance on the basis that the native title party would be engaged in cultural activities during the relevant time, and requested that compliance with the amended directions be extended by six weeks. The grantee party did not agree with this request.

4. 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 that agreement cannot be reached (see Procedures under the Right to Negotiate Scheme – 27 January 2005 (website: paras 3.8.2, 3.9.3)).  I considered Mr Frewen’s application that this not occur because the native title party’s involvement in Law Business represents an impediment to compliance.  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 six week period in which it might comply in circumstances where it had at least some time from 23 November 2005 to comply or at least to commence steps to comply without any impediments caused by Law Business.  A further important factor in this case is that the native title party habitually fails to comply with the Tribunal’s directions and I am not satisfied that there would be compliance even if the entire time requested was allowed.  

5. The Government party has complied with directions and I infer that the grantee party will rely on those submissions.  No submissions from the native title party have been forthcoming to date.

1. On 24 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.

2. It has been clear to the Widji native title party since at least 15 November 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.

3. 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, which I note overlaps the proposed licence entirely, the RSHA should also assist to ensure that sites of particular significance to the Widji native title party in its 4.91 per cent overlap area are protected.

Decision

1. Expedited procedure objection application WO05/621 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President

24 March 2006