Leonne Velickovic on behalf of the Widji People/Western Australia/South Kal Mines Pty Ltd

[2005] NNTTA 75

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/South Kal Mines Pty Ltd, [2005] NNTTA 75 (17 October 2005)

Application No:        WO04/320

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 (Widji native title party)

-and-

The State of Western Australia (Government party)

-and-

South Kal Mines Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            8 August 2005
Date of reasons:              17 October 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

Widji native title party:      Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

grantee party:  Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 3 November 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 P26/3289, P26/3290 and P26/3291 (‘the proposed licences’) to South Kal Mines Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, are future acts which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licences are entirely overlapped by the registered native title claims of the Widji People (WC97/28), the Central West Goldfields People (WC99/29) and the Maduwongga People (WC99/9).  The area and location of the proposed licences are as follows:

• P26/3289 – 195.94 hectares, 21 kilometres south of Kalgoorlie in the City of Kalgoorlie-Boulder;

• P26/3290 – 195.95 hectares, 23 kilometres south of Kalgoorlie in the City of Kalgoorlie-Boulder;

• P26/3291 – 193.32 hectares, 23 kilometres south of Kalgoorlie in the City of Kalgoorlie-Boulder.

1. On 15 November 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 licences.

2. On 30 December 2004 Elizabeth Sambo on behalf of the Central West Goldfields People – Native Title Claim No. WC99/29 registered on 4 October 1999 lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences (WO04/372).  In this matter the native title party consented to a determination that the grants of the proposed licences are acts attracting the expedited procedure (Linda Champion on behalf of the Central West Goldfields People/Western Australia/New Hampton Goldfields Pty Ltd/South Kal Mines Pty Ltd, NNTT WO04/372, WO05/97, WO05/104, [2005] NNTTA 74 (17 October 2005), Hon C J Sumner).

3. The proposed licences are also overlapped 100% by the Maduwongga People’s native title claim, which was registered at the time of the s 29 notice (WC99/9). The Maduwongga People have not lodged objections with respect to the proposed licences and in any event that claim has since been de-registered, thus removing their right to negotiate in relation to them.

Relevant facts

1. The Tribunal made directions on 29 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 statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 1 July 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. At the preliminary conference on 14 December 2004, the grantee party representative indicated that the grantee would only consider executing 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.  The Widji native title party representative indicated that the terms of the RSHA were unacceptable to his client.  The grantee party representative requested that the matter proceed to inquiry.

3. At the status conference convened on 25 May 2005, parties confirmed that agreement was not possible and were reminded of the dates for compliance.

4. The Government party did not fully comply with directions until 8 July 2005, after the due date, and on 11 July 2005 submitted that the directions be amended to allow further time for compliance by other parties.  Accordingly, following the listing hearing on 14 July 2005, I approved, with the agreement of all parties, an amendment to directions requiring native title party compliance by 22 July 2005.

5. The Government and grantee parties have complied with directions. On 8 August 2005, by which time no native title party contentions or evidence had been received, I convened a listing hearing. Mr Jerome Frewen, representative for the native title party was not in attendance and made no submissions prior to the hearing requesting additional time to comply. 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.

Conclusion

1. It has been clear to the native title party since 14 December 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 their 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 these matters. I note that the Widji native title party habitually fails to comply with the Tribunal’s directions and has offered no satisfactory explanation of its failure to comply and has had more than adequate time to do so.

Decision

1. Objection application WO04/320 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
17 October 2005