Leonne Velickovic on behalf of the Widji People/Western Australia/Royce William Allen

[2005] NNTTA 61

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Royce William Allen, [2005] NNTTA 61 (26 August 2005)

Application No:        WO05/32

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-

Royce William Allen (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  26 August 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 Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 15 December 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 P15/4300 (‘the proposed licence’) to Royce William Allen (‘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. The proposed licences overlap the Widji, the Central West Goldfields and the Maduwongga People (WC99/9) native title claims at 100%. The area and location of the proposed licence is as follows:

• P15/4300 – 5664 hectares, 26 kilometres south-west of Kambalda in the shire of Coolgardie.

1. On 26 January 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 applications were lodged by either the Central West Goldfields People or Maduwongga People in relation to the proposed licence.

Relevant facts

1. The Tribunal made directions on 15 February 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 15 August 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. The Tribunal convened a preliminary conference on 22 February 2005, which the native title party representative was unable to attend.  At this hearing, the grantee representative indicated that although his client preferred the Goldfields Regional Standard Heritage Agreement (‘RSHA’), he would be prepared to consider the Widji Alternative Heritage Agreement (Widji AHA). The Tribunal communicated this to the native title party representative in writing the same day and requested that a copy of the agreement be forwarded to the grantee representative. 

3. An adjourned preliminary conference was convened on 15 March 2005 with all parties in attendance.  The grantee representative confirmed receipt of the alternative heritage agreement and indicated that comments had been forwarded to the native title party representative the previous day raising concerns with some aspects of that agreement.   The native title party requested time to consider those comments and seek instructions from his clients, to which the grantee representative and Government party agreed.  Further conferences were convened on 5 April, 19 April and 10 May 2005 at which the native title party representative indicated he had still not received a response from his clients. 

4. At a further adjourned preliminary conference convened on 24 May 2005, the grantee representative stated that he had still not received any response from the native title party to his concerns. The grantee representative reiterated that the grantee had executed the RSHA in favour of the Central West Goldfields People which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection.  As the native title party representative could not give a commitment as to when the requested clarification would be provided, the grantee party representative stated that there was now no opportunity for an agreement and requested that the matter proceed to inquiry.  The parties agreed that the original directions should stand.

5. The Government and grantee parties complied with the directions by the due date.  To date, no contentions or evidence from the native title party has been forthcoming despite a reminder letter being sent to its representative on 19 August 2005. This letter also reinforced the potential consequences for the native title party of non-compliance with the Tribunal’s directions

6. On 25 August 2005 I convened a Listing Hearing, at which the grantee representative, supported by the Government 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. The native title party representative, Mr Jerome Frewen, responded with an application for further time to submit contentions and supporting affidavit evidence.  This request was made on the grounds that his clients had not yet provided him with the necessary information or evidence, despite a request for this having been made some time previously.  The grantee representative and Government party both opposed this application on the basis that the native title party had already been afforded ample opportunity to meet its compliance obligations.

8. It has been clear to the Widji native title party since 24 May 2005 that there was no prospect of a mutually agreed outcome. Even if the requested further time was granted, given the habitual non-compliance of the Widji native title party observed by the Tribunal, it is not certain that Directions would be complied with.  I, therefore, decline the native title party’s application and find that the native title party has failed within a reasonable time to proceed with its objection 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.

9. I note for the record that the Government party has also proposed an extra condition to be imposed on the grant of the proposed licences, requiring that the grantee party, if so requested by the Central West Goldfields People within ninety days of the grant of the proposed licences, shall within thirty days of the request execute the RSHA for the Goldfields region in favour of the Central West Goldfields People in respect of the area covered by the proposed licences.  If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji People are protected.  

Decision

1. The objection application WO05/32 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
26 August 2005