Leonne Velickovic on behalf of the Widji People/Western Australia/Rita Marian Brooks

[2005] NNTTA 64

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Rita Marian Brooks, [2005] NNTTA 64 (2 September 2005)

Application No:        WO05/187

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 the Widji People - WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Rita Marian Brooks (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  2 September 2005

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure 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 Matthew Clohessy, Emerald Tenement Services

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 23 March 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E15/844 (‘the proposed licence’) to Rita Marian Brooks (‘the grantee party’) and asserted that the expedited procedure applied to the grant.

2. The proposed licence overlaps the Widji (WC98/27) and Ngadju (WC99/2) native title claims at 100%. The area and location of the proposed licence is as follows:

• E15/844 – 49.78 square kilometres, 19 kilometres south of Kambalda in the shire of Coolgardie.

1. On 9 May 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.

2. No objection application was lodged on behalf of the Ngadju.

Relevant facts

1. The Tribunal made directions on 24 May 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 comply on or before 21 November 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.

2. On 30 May 2005 the Tribunal received a letter from the grantee party dated 26 May 2005 (purportedly copied to the native title and government party representatives) stating that because a Regional Standard Heritage Agreement ('RSHA') had been executed by the grantee party in favour of the Ngadju native title claimants in accordance with the State's policy, the grantee party did not intend to enter into a further agreement and therefore requested that the matter proceed directly to inquiry.  On 1 June 2005, the Tribunal emailed the grantee party representative (copied to the native title and government party representatives) confirming receipt of the request, and noting that the matter would be listed for a preliminary conference following the objection closing date of 24 July 2005.

3. At preliminary conferences on 7 and 21 June 2005 the grantee party representative confirmed the request to proceed to inquiry.  The native title party representative did not attend either conference.  On 27 June 2005, following confirmation of the grantee party's request to amend directions by bringing the dates for compliance forward, the native title party representative was informed of the grantee party's request by a Tribunal officer via telephone.  The native title party representative did not consent to the request to amend directions and the matter was therefore adjourned to a Directions Hearing before me on 1 July 2005.

4. On 1 July 2005 the grantee party supported by the Government party requested that the matter proceed directly to inquiry and that directions compliance dates be brought forward accordingly.  The native title party representative was not available, despite being notified of the date and time for the hearing via telephone and email on 27 June 2005.  I was advised of the native title party representative's opposition to the amendment of directions on the basis that time was needed to take instructions and obtain affidavit(s) from the native title party.  I found that there was no basis for the native title party’s objection to the proposed amendments.  I pointed out that if there is no need for a negotiation period provided by the directions set because there is no prospect of agreement then standard directions apply (see Tribunal’s Procedures under the Right to Negotiate Scheme paras 3.8 and 3.9 esp para 3.9.3 which provides for compliance by the Government party within three weeks and by the native title party within four weeks of the preliminary conference or closing date for objections).  I also noted that the native title party generally did not comply and that there was no guarantee that contentions and evidence would be produced even if extra time was allowed.  I further noted that at any stage parties may apply for a variation to the compliance dates.  The directions were amended requiring native title party compliance by 22 August 2005 and on the same day all parties were advised via email of the amended compliance dates, the listing hearing scheduled for 2 September 2005 and their liberty to apply for a variation.

5. The Government party complied with the directions by the due date.  The grantee party confirmed that it would rely on the Government party's submissions.  No contentions or evidence from the native title party have been forthcoming.

6. On 2 September 2005 I convened a Listing Hearing by telephone, at which 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. The native title party representative, Mr Jerome Frewen did not attend the hearing despite receiving email notification of it on 30 August and 1 September 2005 and attempts to contact him on his usual telephone numbers.

7. It has been clear to the native title party since 1 June 2005 that there was no prospect of a mutually agreed outcome.  I therefore 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. I have taken into account the past behaviour of the native title party who habitually fails to comply with the Tribunal’s directions.

Decision

1. The objection application WO05/187 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
2 September 2005