Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd

[2004] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, [2004] NNTTA 43 (18 June 2004)

Application Nos:       WO03/668; WO03/764

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

-and-

IN THE MATTER of inquiries into expedited procedure objection applications

Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Allarrow Pty Ltd (grantee party in WO03/668) and;
Coniston Pty Ltd (grantee party in WO03/764)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            28 May 2004
Date of reasons:              18 June 2004

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

Legislation:Native Title Act 1993 (Cth) ss 29, 32(3), 148(b).

Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004), The Hon EM Franklyn QC

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the
native title party:            Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the     

grantee party:                Mr Terry McMahon and Mrs Gail McMahon, WA Mining Titles Pty Ltd

Representative of the      Ms Karen Dougall, State Solicitor’s Office
Government party:         Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 13 August 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P27/1597, P27/1598 and P27/1599 to Allarrow Pty Ltd (‘the grantee party’/‘Allarrow’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 10 September 2003 the Government party gave notice under s 29 of the Act of its intention to grant prospecting licences P25/1766-1775 and P25/1783-1786 to Coniston Pty Ltd (‘the grantee party’/‘Coniston’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

3. Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged expedited procedure objection applications:

   ·in relation to the Allarrow prospecting licences with the Tribunal on 12 August 2003 (designated WO03/668);

   ·and in relation to the Coniston prospecting licences on 9 September 2003 (designated WO03/764).

Both objections were lodged within the four month timeframe permitted pursuant to s 32(3) of the Act.

1. Since 31 March 2004 both Allarrow and Coniston have been represented by WA Mining Titles Pty Ltd and the expedited procedure objection applications have been heard together.  For this reason, the objection applications are dealt with together in this decision.

Relevant Facts

1. The area, location, and percentage to which each of the Allarrow prospecting licences (WO03/668) is overlapped by the registered native title claim is as follows:

   ·P27/1597 – 177.11 ha, 39 km north of Kalgoorlie, 100% overlap

   ·P26/3177 - 172.27 ha, 38 km north of Kalgoorlie, 100% overlap

   ·P26/3178 – 88.27 ha, 38 km north of Kalgoorlie, 100% overlap

1. The area, location, and percentage to which each of the Coniston prospecting licences (WO03/764) is overlapped by the registered native title claim is as follows:

   ·P25/1766 – 120.83 ha, 26 km east of Kambalda, 100% overlap

   ·P25/1767 – 121.27 ha, 27 km east of Kalgoorlie, 100% overlap

   ·P25/1768 – 120.94 ha, 26 km east of Kalgoorlie, 100% overlap

   ·P25/1769 – 121.26 ha, 27 km east of Kalgoorlie, 100% overlap

   ·P25/1770 – 121.27 ha, 27 km east of Kalgoorlie, 100% overlap

   ·P26/1771 – 120.91 ha, 26 km east of Kalgoorlie, 100% overlap

   ·P26/1772 – 121.02 ha, 25 km east of Kalgoorlie, 100% overlap

   ·P25/1773 – 121.15 ha, 25 km east of Kalgoorlie, 100% overlap

   ·P25/1774 – 173.67 ha, 27 km east of Kalgoorlie, 100% overlap

   ·P25/1775 – 121.3 ha, 25 km east of Kalgoorlie, 100% overlap

   ·P25/1783 – 200 ha, 26 km east of Kalgoorlie, 100% overlap

   ·P25/1784 – 194.85 ha, 26 km east of Kalgoorlie, 100% overlap

   ·P25/1785 – 103.91 ha, 26 km east of Kalgoorlie, 100% overlap

   ·P25/1786 – 191 ha, 26 km east of Kalgoorlie, 100% overlap

2. The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to WO03/668 on 26 August 2003.  The Direction in respect of the native title party was as follows:

   ‘(3)On or before 14 April 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.’

3. Identical Directions were issued in relation to WO03/764 on 26 September 2003 requiring native title party compliance by 10 May 2004. 

4. The Tribunal convened a Status Conference on 3 March 2004, in relation to WO03/668 at which time the grantee party representative advised it would prefer to proceed to Inquiry following the breakdown of negotiations.  A similar statement was made in relation to WO03/764 at a further Status Conference held on 31 March 2004.

5. On 22 March 2004 the Tribunal received correspondence from Mr Frewen, native title party representative, requesting a general adjournment of outstanding Widji objections in the following terms:

   ‘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 from 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 PC’s Status Conferences, Compliance Dates and Directions be set back by six week, where applicable, to enable to Widji People to deal with these matters’.

The correspondence continued by listing a number of objection applications, amongst which was listed WO03/668 but not WO03/764.  The new policy is a reference to the use of a Standard Heritage Protection Agreement which if signed by the grantee party results in the Government party continuing to assert the expedited procedure in relation to the grant.

1. On 2 April 2004 a Directions Hearing to deal with a number of objection applications involving the Widji People and consider Mr Frewen’s submissions was convened by me and new Directions were issued requiring the native title party to comply on or before 7 May 2004.  Mr Frewen agreed to this timetable.

2. The Government party had complied with Directions initially set for these matters on 24 March 2004 and amended statements of contention were submitted by the Government party on 22 April 2004 in response to the 2 April 2004 Directions.

3. On 17 May 2004 the Tribunal received a submission from the native title party in the form of a Statement of Contentions.  This submission was made in a form common to a number of other objection applications lodged by the native title party for which Directions were re-made on 2 April 2004.  The submission was not accompanied by affidavit or documentary evidence.  Correspondence in the following terms was included reiterating a request, made by Mr Frewen on 11 May 2004, for further time to comply:

   ‘My client, the Objector, wishes to have enquiries heard “on country”, and wishes to prepare Affidavits.  However I am advised that he is in Eastern Goldfields regional Prison for another 4-6 weeks, so any further action on these matters should await his release.’

4. No Statements of Contention have been lodged in either matter on behalf of the grantee parties as their intent to rely on contentions and evidence submitted by the Government party was stated during a Listing Hearing convened on 21 May 2004.

5. At the Listing Hearing convened by Ms Murphy, the Tribunal’s Acting Senior Caseflow Manager, on 21 May 2004, Mr Jerome Frewen reiterated his written request of 17 May 2004. The grantee parties’ representative opposed the native title party’s request for additional time and an ‘on country’ hearing, preferring that these matters proceed directly to inquiry on the papers. The Government party concurred with this view during the hearing, and subsequently reiterated its position in a written submission lodged with the Tribunal on 27 May 2004 in which it submitted that the applications should be dismissed pursuant to s 148(b) of the Act on the grounds that the native title party had failed to comply with the Tribunal’s directions.

6. A further Listing Hearing was convened by me on 28 May 2004, at which the native title party was afforded the opportunity to make submissions regarding the request for further time to submit affidavit evidence.  Mr Frewen stated that as key member of the claim group, Mr Leonne Velickovic, was incarcerated, the group as a whole was not in a position to provide affidavit evidence in support of the objection applications.  Mr Frewen also indicated that he had raised the issue of compliance with the Widji People at a meeting held in Kalgoorlie on 16 April 2004 and that he had subsequently been advised that action by the claim group should await Mr Velickovic’s release.  Mr Frewen also stated that he had not been advised of Mr Velickovic’s release date.

7. In response, the State Solicitor, Ms Karen Dougall, on behalf of the Government party took up the issue of the date on which Mr Velickovic had been imprisoned.  On the basis of information obtained from the Police Prosecutor, the State Solicitor indicated that Mr Velickovic’s imprisonment had commenced in February 2004, from which time the native title party representative ought to have known that compliance with Directions would be problematic.  Mr Frewen responded that to the best of his knowledge, Mr Velickovic was not taken into custody until early April 2004.  Ms Dougall also said that from information obtained from Kalgoorlie Boulder prison, Mr Velickovic was due for release on 7 June 2004.

8. In response to the submission made by Mr Frewen, both the grantee and Government parties reiterated their opposition to any further time being granted for the lodgement of evidence supporting the native title party’s statement of contentions and requested dismissal of the objection applications.

Conclusion

1. It is my view that the native title party has failed within a reasonable time to proceed with the objection applications and to comply with Directions despite an extensive list of evidence intended to be adduced by it, which was submitted at paragraph [8] of the Form 4 objection applications, and the stated desire of the grantee party to progress the matters to Inquiry since at least 3 March 2004 (WO03/668) and 31 March 2004 (WO03/764).  The Statement of Contentions provided by the representative for the native title party on 17 May 2004 does not provide the information required by the Directions and no explanation has been given as to why supporting evidence was not gathered prior to Mr Velickovic’s unavailability.  In particular, no documents, statements of evidence or affidavits upon which the native title party intends to rely have been provided (Direction 3(b) and 3(c)).

2. In coming to my decision I have applied the principles established by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13]). I have also had regard to the Tribunal’s decision to dismiss an objection application in Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004), The Hon EM Franklyn QC, which involves the same objector, Mr Velickovic. Deputy President Franklyn considered the contentions provided by the native title party which are in identical terms to those lodged in these matters. He concluded that no attempt was made by the native title party’s contentions to provide the information required of them by the Directions (at para [11]).

3. Mr Franklyn also considered the native title party’s submissions regarding its failure to comply on account of Mr Velickovic’s imprisonment.  However, Mr Franklyn did not have all the information that has now been provided to me by Mr Frewen about Mr Velickovic’s imprisonment, which I should say is contradicted to some extent by the information which the Government party has obtained (see above).  Nevertheless, Mr Franklyn considered the relevance of imprisonment and did not regard it as persuasive in coming to his decision.  Even taking into account the additional information provided by Mr Frewen about Mr Velickovic’s imprisonment, and also considering that there is some conflict about it, I do not regard that information as sufficient to agree to the adjournment request from Mr Frewen.  If I had regarded information about the dates of imprisonment as being critical to my decision then I would have taken steps to clarify the different versions that were given by Mr Frewen and Ms Dougall.  I do not accept that imprisonment means that Mr Frewen cannot consult with Mr Velickovic; imprisonment is not something that totally isolates people from contact with the community.  In addition, there are claimants other than Mr Leonne Velickovic listed on the claim as applicants; Gary Dimer, Lisa Bonney, Mary Anne Velickovic and Olivia Dimer on behalf of the Widji People.  The Register of Native Title Claims also refers to the Widji Association which has a number of members on behalf of whom the Widji Claim is brought.  I consider that Mr Frewen could have taken steps to discuss the objections with them and obtain the necessary evidence and affidavits even though Mr Velickovic may have been at that time in prison.

4. At the hearing on 2 April 2004 the Tribunal acceded to Mr Frewen’s request for additional time to comply made on 22 March 2004 and Mr Frewen agreed to the timetable as set which required his clients to comply by the 7 May 2004. The consequence of a failure to comply with Directions (i.e. the possibility of dismissal of the objection pursuant to s 148(b) of the Act) is stated in the standard directions sent out by the Tribunal. The obligations and the consequences of failure to comply were reiterated in the formal written Directions sent out in both these matters confirming the Directions I re-made on 2 April 2004. Again, by letter dated 11 May 2004 the native title party’s attention was drawn to the fact that it had not complied with the directions of 2 April 2004 and the possible consequences.

5. The only other matter I wish to observe is that WO03/668 was lodged on 12 August 2003 and WO03/764 on 9 September 2003.  These matters have, therefore, been in the system for a considerable time and one would have expected some steps to have been taken by the native title party to provide an evidentiary basis for their objections within that time.  Mr Frewen has not made any submissions in this respect and as far as I can ascertain nothing has been done to try to take even preliminary steps to collect relevant evidence to sustain the objection.

Decision

1. Being satisfied that the applicant (native title party) in each of the applications WO03/668 and WO03/764 failed within a reasonable time to proceed with its expedited procedure objection application and to comply with directions of the Tribunal, the objection applications are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
18 June 2004