Leonne Velickovic on behalf of Widji People (WC98/27)/ Western Australia/ Mat Mining Pty Ltd

[2004] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People (WC98/27)/ Western Australia/ Mat Mining Pty Ltd, [2004] NNTTA 35 (25 May 2004)

Application No: WO03/767

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

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IN THE MATTER of an Inquiry into an expedited procedure objection application

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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Mat Mining Pty Ltd (Grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   The Hon EM Franklyn QC, Deputy President
Place:  Perth
Date of Dismissal:     20 May 2004
Date of Reasons:      25 May 2004

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

Legislation:Native Title Act 1993 (Cth) s148(b).

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On the 10 September 2003, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant Prospecting Licence P15/4573 to Mat Mining Pty Ltd (‘the Grantee’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

1. On 9 September 2003, Leonne Velickovic on behalf of Widji People (‘the Native Title party’) lodged an expedited procedure objection application with the Tribunal, relying on each of the provisions of s 237 of the Act and outlining the evidence it would adduce.

Relevant Facts

1. The Licence the subject of this objection is situated wholly within the Widji Native Title Claim, covers an area of six hectares, and is located on Unallocated Crown Land.

2. On 26 September 2003 Deputy President CJ Sumner accepted the objection application and made Directions for the conduct of the inquiry in the following terms:

   (1)     A status conference (if necessary) will be held on 31 March 2004.

   (2)     On or before 3 May 2004 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 10 May 2004 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 17 May 2004 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 20 May 2004.

   (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).

1. 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 directions to be complied with by it.

2. At a Preliminary Conference held on 14 October 2003, at which the Native Title party was represented, the Grantee advised that it wanted the objection application to go “directly” to Inquiry.

3. The Government party complied with the said directions by 21 April 2004.  There was no compliance by the Native Title party by its due date for compliance (10 May 2004) and no request for an extension of time for compliance, either in written form or during the Status Conferences held on 31 March 2004 or 7 April 2004.  The Native Title party did not appear at that of 31 March 2004 but was represented at that of 7 April, at which the Grantee advised once more that it wished the matter to proceed to Inquiry.  The question was raised that the directed compliance dates be brought forward.  This was not done however, as the Native Title party’s representative opposed the suggestion and stated that the directions should remain as made.

4. On 14 May 2004, the Tribunal case manager reminded the Native Title party representative, Mr Frewen, in correspondence that due date for contentions had passed and reiterated the provisions of s 148(b) of the Act. The Native Title party representative was asked to advise his intentions with regard to the provision of contentions and evidence.

5. On 18 May 2004 the Tribunal received from the representative for the Native Title party documents described 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 representative 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 application the subject of this Inquiry.  The Statements of Contentions are in common form in respect of each such application.

6. The Statements of Contentions are extensive but are directed in each case to a submission that the expedited procedure is not attracted to the proposed future act, that the Grantee in each case should execute the Widji Peoples’ Alternative 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 tenement 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 Act”. 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”.

7. There is no attempt in the Native Title party’s contentions to provide the information required by direction 3 of the directions of 26 September 2003.  There is no reason given for the failure to lodge them within the period of nearly eight months set by such directions.  There is no reason given why the statements of evidence required by such directions have not been provided, nor any reasons why the matter should be heard on country.

8. On 20 May 2004 the Tribunal convened a Listing Hearing during which the Native Title party representative was given the opportunity to provide reasons why compliance had not been met and why the objection application 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. Mr Frewen was not able to specify when Mr Velickovic was taken into custody or would be released, nor why the directions had not been complied with since 14 October 2003 when the Grantee first advised that it wanted the objection application to go directly to Inquiry. He stated that his efforts had been directed at negotiating an agreement with the Grantee party. That statement confirms, in my view, that since 14 October 2003, the Native Title party has made no effort to comply with the directions made and so proceed with its objection application. That conclusion is supported by its failure to comply with the directions following the Grantee’s repetition, on 7 April 2004, of its desire for the matter to go to Inquiry. It is also apparent, in my view, from the content and common form of the contentions, which do not provide the information required by the directions to enable the objection application to proceed.

9. The record of what took place at the hearings in this matter, the failure of the Native Title party to comply with the directions of 26 September 2003 and the nature and form of the contentions belatedly lodged by it, together lead to the positive inference that the Native Title party was continuing to direct its efforts towards negotiating an agreement in terms of the “Widji Agreement” despite the Grantee’s stated wish that the objection application go to Inquiry, and was not concerned with progressing its objection application or compliance with directions. 

10. I am satisfied that the Native Title party has failed within a reasonable period of time to proceed with its objection application. The Native Title party has been aware of the Grantee party’s desire that the matter go to Inquiry since October 2003, yet has done nothing within the time set by directions to comply therewith to enable the issues raised by s 237 of the Act to be dealt with and nothing else that can be construed as proceeding with that application.

Decision

1. Being satisfied that the Native Title party failed within a reasonable time to proceed with its objection application and to comply with the directions of the Tribunal, I dismissed the objection application on 20 May 2004 pursuant to the provisions of s 148(b) of the Act.

Hon EM Franklyn QC
Deputy President

25 May 2004