Leonne Velickovic on behalf of Widji People/The State of Western Australia/ Australian Gold Resources Ltd - [2004] NNTTA 61

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/The State of Western Australia/ Australian Gold Resources Ltd, [2004] NNTTA 61 (6 July 2004)

Application Nos: WO03/365, WO03/366 and WO03/367

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of Inquiries into expedited procedure objection applications

Leonne Velickovic on behalf of Widji People – WC98/27 (Native Title party)

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The State of Western Australia (Government party)

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Australian Gold Resources Ltd (Grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon EM Franklyn QC, Deputy President
Place:  Perth
Date of Dismissal:     21 June 2004
Date of Reasons:      6 July 2004

Catchwords: Native title – future act – proposed grant of exploration licences expedited procedure applications – failure to comply with Directions – failure within a reasonable time to proceed with objection applications - objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(b)

Representatives of the
Native Title Party                 Mr Yvonne Brownley and Mr Jerome Frewen (Desert   Management Pty Ltd)
Representative of the
Government party                 Mr Clyde Lannan – Department of Industry and  Resources
Representative of the
Grantee party            Mr Chris Clegg, Statewide Tenement & Advisory   Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On the 9 April 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E15/582, E15/583 and E15/604 (‘the proposed licences’) to Australian Gold Resources Ltd (‘the Grantee party’) and included in the notice a statement that it considered that each such grant attracted the expedited procedure.
On 7 April 2003, Leonne Velickovic on behalf of Widji People (‘the Native Title party’) lodged expedited procedure objection applications to the Tribunal in respect of each such proposed grant. The objection applications each relied on each of the provisions of s 237 of the Act and outlined the evidence the Native Title party would adduce.

Relevant Facts

The proposed licences are situated wholly within the area of the registered native title claim of the Widji People. E15/582 occupies an area of 5.86 km² and E15/583 occupies 14.66 km², each thereof being wholly on Pastoral Lease 3114/1192 (known as Mt Monger and vested in Jarac Pty Ltd) and Unallocated Crown Land. E15/604 comprises an area of some 2.92 km² and is situated entirely on Unallocated Crown Land.
On 30 April 2003 Deputy President CJ Sumner made directions for the conduct of each inquiry as follows:
(1)     A status conference (if necessary) will be held on 5 November 2003.
(2)     On or before 1 December 2003 the State is to provide to the Tribunal, the objector and the grantee a statement of contentions and documents relevant to the Inquiry including:
(a)      a topographical map or maps of an appropriate scale marked with:
ithe areas of the licence/s and the location of registered sites under the Aboriginal Heritage Act 1972; and
iiboundaries of various tenures of land within and overlapping the boundaries of the tenement with details of the nature of each such tenure.
(b)      the details of any Aboriginal community within and in the vicinity of the licence/s;
(c)      the details of the registered sites under the Aboriginal Heritage Act 1972; and
(d)      Mining Tenement documents, including:
icopies of the application for the licence/s;
iicopies of the proposed Schedule of Endorsements and Schedules of Conditions;
iiidetails of any current mining tenement on or overlapping the licence area and whether it was the subject to the right to negotiate provisions of the Native Title Act; and
ivavailable details of prior mining tenements granted on or overlapping the same area including the date of the grant and the date of expiry.
(3)     On or before 8 December 2003 the native title party shall provide the following to the Tribunal and each other party:
(a)      a statement of contentions.
Statement of contentions to include:
·a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
·a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement.
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
(4)     On or before 15 December 2003 the grantee party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions; and
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
(5)     A listing hearing (if necessary) will be held on 18 December 2003.
(6)     Liberty is given to apply to vary these directions or for a relisting of this hearing.
(7)     Parties are asked to note that:
·if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended)); and
·a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.
·As far as practicable parties are to provide evidence in documentary form (see paragraph 3.16 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal 8 February 2002 and in particular para 3.16.4).

The three applications were thereafter dealt with and heard together, the same steps being taken in respect of each.

In a letter sent to each party with a copy of the said directions, attention was again drawn to the possibility of dismissal for non-compliance by the Native Title party with the said directions.
The Government party complied with the said directions by 27 November 2003. On 20 November 2003, the Native Title party lodged with the Tribunal in respect of each objection application a document entitled: ‘Submission of Objector (Widji People): The Impact of the Proposed Act of Exploration Licences E15/583, E15/582 and E15/604 (applicant Australian Gold Resources) upon the Native Title Rights and Interests of the Widji People’. This submission did not include the information and statements required by direction 3(a) nor any of the material required by direction 3(b) and (c). Its thrust was that, as the Grantee had not entered into a heritage protection agreement with the Native Title party, the expedited procedure should not apply. No further contentions, submission or statements of evidence, as requested by the directions, were received from the Native Title party by 12 November 2003.
At a Status Conference held on 12 November 2003, at which the Native Title party was not represented, a Tribunal staff member proposed an extension of time for compliance with directions as it appeared that the parties were prepared to negotiate and as the Christmas break and time for Aboriginal Law business were approaching. The Government and Grantee parties agreed to an extension for compliance by the Native Title party to 9 February 2004 and by the Grantee to 16 February 2004, a listing hearing to be held on 19 February 2004. The consent of the Native Title party to these proposed variations was given in writing on 28 November 2003.
On 4 February 2004 the Tribunal convened a further Status Conference at which the parties reported that they were still attempting to reach agreement. In the light of this, a proposal to further amend directions to extend the dates for compliance was agreed to by all parties and subsequently approved by the Tribunal. Accordingly, compliance by the Native Title party was directed on or before 9 March 2004 and by the Grantee party on or before 16 March 2004, a listing hearing to be held on 23 March 2004. On 12 February 2004 all parties were advised in writing of these variations and that a Status conference would be held on 2 March 2004.
On 16 February 2004, the Tribunal received a letter on Desert Management Pty Ltd letterhead from Mr Jerome Frewen, on behalf of the Native Title party, drawing attention to the ‘Widji “Standard” Heritage Agreement’, and containing the following statements:
‘Where objections are withdrawn by the Widji people as a result of reaching agreement, it is as a result of reaching agreement using the Widji Standard Agreement – not the GLSC Standard Agreement.
For the avoidance of doubt, I would be grateful if you could advise agencies and grantee parties with whom you are dealing that (amongst other reasons) as the Widji People are not represented by the GLSC, the GLSC Agreement does not apply for negotiating an exploration and heritage agreement – the Widji People have their own agreement – the Widji Standard Exploration and Heritage Agreement.’

It is apparent from that letter that the Native Title party’s efforts, at this stage, were still directed to negotiation of an agreement and not to proceeding with the objection applications. A letter dated 20 February 2004 from Mr Frewen as ‘Consultant to Widji People”, and copied to the Tribunal, comments that the “Standard Widji Heritage Agreement” was sent to the Grantee on 21/11/03, that there had been no response from the Grantee, and requested such response within 7 days.

At the Status conference held on 2 March 2004, the Grantee’s representative advised that he had had no ‘feedback’ on the agreement from the Grantee and the conference was adjourned to 24 March 2004 for him to receive instructions.
At the conference on 24 March 2004, the representative for the Grantee advised that his instructions were to proceed to Inquiry. Mr Frewen, for the Native Title party, requested a further extension of time in which to submit affidavit evidence and this request was agreed to by both Government and Grantee parties. In the interim the three objection applications together with a number of Widji matters which were to proceed to Inquiry were set down for a Listing Hearing on 13 May 2004.
At the hearing on 13 May 2004 the Grantee advised it wanted the matter to proceed to inquiry as soon as possible and opposed any further extension of time for compliance. Mr Frewen advised that Mr Velickovic was in custody for 4-6 weeks and that he had difficulty obtaining instructions. The Government party also opposed any further extension of time for compliance by the Native Title party. The Grantee then proposed that it be left to the Tribunal to decide whether further time for such compliance should be allowed. Mr Frewen stated that after Mr Velickovic’s release from custody, it would be necessary for a claimant group meeting to be held to get instruction.
On 18 May 2004 the Native Title party lodged with the Tribunal documents, described in an accompanying letter on Desert Management letterhead signed by Mr Frewen, as “Statements of Contentions in relation to a number of matters, for which statements were due, or are due”. The letter advised that the Native Title party wished the “enquiries” to be held “on country” and wished to prepare affidavits, but that as the writer had been advised that the Objector “is in Eastern Goldfields regional prison for another 4-6 weeks”, “any further action on these matters should await his release”. The letter listed at its foot a number of tenement applications over Widji land, including the applications the subject of this Inquiry. The Statements of Contentions are (with some minor variations in some of them) in common form in respect of each such application.
The said Statement of Contentions are extensive but are directed in each case to a submission that the expedited procedure is not attracted to the proposed future acts, that the Grantee in each case should execute the Widji Peoples’ Standard Heritage Agreement, and that unless the Grantee has executed a heritage agreement the expedited procedure under the Act cannot apply. In this the contentions ignore the provisions of s 32 of the Act. Towards the end of the submission the contentions (in the common form) allege that the Widji People continue to visit the “application area” for traditional purposes, have camped “at these areas” since time immemorial, that their present and past activities “on the application areas” include hunting and gathering, camping, the lighting of fires and the enjoyment of cultural and educational activities, the rehabilitation of waterholes, extraction of resources from the land and various cultural pursuits. The contentions assert that the grant of the tenements without an agreement and recognition of such activities under a heritage and visiting protocol “will cause distress and anguish to the Widji People, and violate s 237 of the NTA”. Finally, the contentions assert that because the Grantee refuses to enter into the Widji Alternative Heritage Agreement (with or without amendment), the “application does not qualify for the expedited procedure”.
There is no attempt in the Native Title party’s contentions, or otherwise, to provide the information and material required by direction (3) of the directions of 30 April 2003. There is no reason given for the failure to lodge them within the period of nearly eight months set by such directions or any extended period agreed to by the other parties. There is no reason given why the statements of evidence required by such directions have not been provided, nor any reason why the matter should be heard on country.
On 20 May 2004 I convened a Listing Hearing during which the Native Title party representative (Mr Frewen) was given the opportunity to provide reasons why compliance had not been met and why the objection applications should not be dismissed under s 148(b) of the Act. Mr Frewen relied on his submission that the Objector was currently detained and it was not possible for affidavit evidence to be prepared until his release from prison. The directions required a statement of evidence “verified where possible by affidavit”. I do not accept that any statements of evidence to support the grounds of objection in terms of s 237 of the Act or to justify a “hearing on country”, could not have been earlier obtained or that the same could not be obtained (if available) from Mr Velickovic whilst in custody or some other member or members of the Native Title claimant group. However, I granted a further extension of time in which to comply on the basis that it was possible the Native Title Party was not aware until 24 March 2004 that the Grantee party was not willing to negotiate an agreement as sought by the Native Title party and directed that the Native Title party lodge and serve all statement of evidence and affidavits on which it intended to rely on or before 17 June 2004, the directions expressly setting out the effect of s 148(b) of the Act in the event of non-compliance. The directions also directed a listing hearing to be held on 21 June 2004. Mr Frewen was advised that if the directions were not complied with, it was probable that the three objection applications would be dismissed. Mr Frewen advised that he was likely to be overseas at the date set for compliance.
On 10 June 2004 the Tribunal case manager in correspondence, reminded the Native Title party representative of the due date for compliance set by such direction and drew attention to the provisions of s 148(b) of the Act. Mr Frewen replied the same day that he was seeing Mr Velickovic the following day.
On 15 June 2004 Mr Frewen was reminded by facsimile of the Listing Hearing convened by the Tribunal for 21 June 2004 and that compliance was due on 17 June 2004. On 17 June, a facsimile in identical terms were sent to the Managing Director, Desert Management Pty Ltd and Ms Yvonne Brownley, the named representative for the Widji People on each objection application, who is understood to be a director of Desert Management Pty Ltd and whose address, telephone number and email address are shown on the application as the same as those of the company.
The listing hearing on 21 June 2004 was attended by representatives of all parties, Ms Yvonne Brownley appearing on behalf of the Native Title party. Ms Brownley was asked for but was unable to provide any reason or explanation as to why the original directions of 30 April 2003, the extensions of time agreed to and those directed by me, had not been complied with, despite advice from the Grantee representative 24 March 2004 that the Grantee wanted the objection applications to go directly to Inquiry and despite having sought instructions from Mr Velickovic. When asked, she could provide no reason why the three objection applications should not be dismissed pursuant to s 148(b).
It is clear from the evidence that the Native Title party has made no effort to comply with the directions made and so proceed with its objection applications.

Decision

Being satisfied that the Native Title party failed within a reasonable time to proceed with its said objection applications and to comply with the directions of the Tribunal, I dismissed the objection applications on 21 June 2004 pursuant to the provisions of s 148(b) of the Act.

Hon EM Franklyn QC
Deputy President

6 July 2004