Leonne Velickovic on behalf of Widji People (WC98/27)/Western Australia/ Scott Walter Wilson
[2004] NNTTA 25
•8 April 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People (WC98/27)/Western Australia/ Scott Walter Wilson, [2004] NNTTA 25 (8 April 2004)
Application No: WO03/567
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 Widji People – WC98/27 (Native Title party)
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The State of Western Australia (Government party)
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Scott Walter Wilson (Grantee party)
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: The Hon EM Franklyn QC, Deputy President
Place: Perth
Date of Dismissal: 1 April 2004
Date of Reasons: 8 April 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
On the 21 May 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 Licences P24/3704, P24/3705, P24/3706, P24/3707, P24/3708 and P24/3709 (‘the Licences) to Scott Walter Wilson (‘the Grantee party’) and included in the Notice a statement that it considered that the grant attracted the expedited procedure.
On 15 July 2003, Leonne Velickovic on behalf of Widji People (‘the Native Title party’) made an expedited procedure objection application to the National Native Title Tribunal (‘the Tribunal’), relying on each of the provisions of s 237 of the Act and outlining the evidence it would adduce.
Relevant Facts
Each of the Licences the subject of this objection to the expedited procedure is 100% overlapped by the Widji Native Title Claim. They cover a combined area of 1,061.56 hectares and are situated approximately 55 kilometres north-west of Kalgoorlie. Government party contentions indicate that each of the proposed Licences is situated on Pastoral Lease 3114/1222, vested in Centaur Mining and Exploration Ltd. In addition, a portion in the north-east corner of P24/3705 encompasses vacant crown land.
On 11 August 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 17 December 2003.
(2) On or before 12 January 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 4 February 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 11 February 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 19 February 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).
Paragraph (7) of the directions specifies the provisions of s 148(b) of the Act, which provide that if the objector fails within a reasonable period of time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the objection application. The same caution was repeated in the letter of 13 August 2003 from the Tribunal to each of the parties with a copy of the said directions.
The Government party complied with the said directions by 7 January 2004. There was no compliance by the Native Title party by its due date for compliance (4 February 2004) and no request for a variation of the directions by way of an extension of time for compliance.
On 11 February 2004 the Tribunal held a Status Conference during which the Native Title party requested an amendment to directions on the basis that no contact with the Grantee party had been possible, and that some indication of Grantee party intentions were required before Native Title party contentions could be submitted.
On 18 February 2004 the Grantee party requested that the matter go to Inquiry. The Native Title party formally requested mediation assistance under s 150 of the Act. On 25 February 2004 the Tribunal declined the request for mediation assistance on the basis that the Grantee party did not wish to negotiate and had requested that the matter go to Inquiry.
On 5 March 2004 the Tribunal varied the directions, directing the compliance date for the Native Title party to be 17 March 2004, and that for the Grantee party, 24 March 2004.
The Grantee party submitted a statement of contentions on 22 March 2004.
The Tribunal has received no contentions or other material from the Native Title party. On 22 March 2004 Mr Jerome Frewen, representative for the Native Title party, wrote a letter to the Tribunal in the following terms:
‘There are a number of matters that have been ongoing in the expedited procedure process, some of these stretch back up to 9-12 months. In almost every case, the Grantee Party concerned has requested, and been sent, a copy of the Widji State Heritage Agreement.
Negotiations in almost all cases have been proceeding over many months on the basis of the Widji Standard Agreement. In some cases, negotiations were reasonably well advanced, and while the time taken to deal with these has been extensive, it was the view of the Widji that progress was being made.
However, over the past 2 weeks, there has been a new procedure and policy applied by the WA Government, wherein the WA Government representative has attended hearings (Mr G Simmons) and attempted to guillotine any discussion immediately. Mr Simmons had alluded to a “standard Goldfields Heritage Agreement:” negotiated between the State, the Mining Industry and the GLSC, and which the Widji People were not part of. Mr Simmons has attempted to terminate and discussions or negotiations under the expedited procedure, which has had as its effect the summary termination by many of the grantee parties in considering the Widji Agreement, and an attempt to truncate negotiations based upon the State’s new policy.
The Widji People have now engaged legal counsel to prepare advice upon the State’s new policy, and the implications that this has on related aspects of the expedited procedure process. It is with some regret that I therefore formally request that the Widji People be provided with 6 weeks to receive its legal advice, and there the group will be able to develop its response to the new regime imposed by the State.
I therefore request that in all Widji matters any further PCs, Status Conferences, Compliance Dates and Directions be set back by six weeks, where applicable, to enable the Widji People to deal with these matters.’
The letter then listed the matters for which compliance was due in the next four weeks, one of those being this objection application, WO03/567.
On 1 April 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. The Native Title party representative relied on the letter of 22 March 2004 on which he elaborated. He gave no reason for his failure to comply with the direction. The record of what took place at the various hearings in this matter, the content of the letter of 22 March 2004, and the failure to comply with directions, makes clear that as representative of the Native Title party his efforts were directed to negotiations in respect of the “Widji Agreement” and not to proceeding with the objection application, notwithstanding the Grantee party’s expressed desire that the matter go to Inquiry.
Decision
Being satisfied that the Native Title party failed within a reasonable time to proceed with its objection application and to comply with the aforesaid directions of the Tribunal, I dismissed the objection application on 1 April 2004 pursuant to the provisions of s 148(b) of the Act.
Hon EM Franklyn QC
Deputy President
8 April 2004
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