Leonne Velickovic on behalf of Widji People/Western Australia/Anglo Australian Resources NL - [2004] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Anglo Australian Resources NL, [2004] NNTTA 46 (21 June 2004)

Application No: WO03/380

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)

-and-

The State of Western Australia (Government party)

-and-

Anglo Australian Resources NL (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon CJ Sumner, Deputy President
Place:  Perth
Date of dismissal:            3 June 2004
Date of reasons:              21 June 2004

Catchwords: Native title – future act – proposed grant of exploration licence – 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) s 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
Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner

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

Representative of the
grantee party: Ms Kellie Hill, Kellie Hill Consulting

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

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 licence E15/776 to Anglo Australian Resources NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 7 April 2003, Leonne Velickovic on behalf of Widji People (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant Facts

E15/776 concerns an area of some 32.14km² and is located 40 kilometres east of Widgiemooltha. The registered claim of the native title party covers approximately 36% of the area of the proposed licence, the overlap being in the northern sector of E15/776.
On 30 April 2003, the Tribunal made Directions for all parties to produce contentions and evidence for the conduct of the inquiry. The Direction in respect of the native title party was as follows:
‘(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.’
At the Status Conference of 19 November 2003 the representative for the native title party requested an extension of time for compliance until February citing Widji Law Business as the reason for the delay. At this stage parties were attempting to negotiate an agreement and the request was unopposed.
The Government party submitted contentions and evidence by 27 November 2003, thereby complying with Directions set on 30 April 2003.
On 26 November 2003 the native title party submitted a document entitled: “Submission of Objector (Widji People): The Impact of the Proposed Act of Exploration Licence E15/776 (applicant Anglo Australian Resources) upon the Native Title Rights and Interests of the Widji People”. The submission was in the form of contentions but was neither accompanied by affidavit or other documentary evidence nor accompanied by any request for a further extension of time in which to fully comply.
Following the verbal request for a variation to Directions made at the Status Conference of 19 November 2003 a Tribunal staff member wrote to all parties on 6 February 2004 inviting submissions regarding this application for extension of the time for compliance. The Tribunal acknowledges an unacceptable delay in attending to this request. Nevertheless, all parties concurred and compliance with respect to the lodgement of supporting affidavits by the native title party was extended to 17 March 2004.
On 18 February 2004 the native title party representative submitted a formal request to the Tribunal for mediation assistance under s 150 of the Act. This request was denied following advice from the grantee party that it did not wish to participate in the mediation process.
On 10 March 2004 the Tribunal convened a further Status Conference which the grantee party was unable to attend. The convening case manager advised the parties present that in the light of unsuccessful negotiations the matter would proceed to Inquiry, at which time the native title party representative indicated it may wish to submit further contentions following discussions with the grantee party. The grantee party was advised of the outcomes of this conference and reminded of dates for compliance on the same day.
On 18 March 2004 the representative for the grantee party forwarded correspondence to the native title party (copy to the Tribunal) in the following terms:
‘I understand that the Widji People have objected to the expedited procedure being applied to this tenement application and this matter is now proceeding to Inquiry. While Anglo Australian Resources NL is prepared for the tenement application to proceed in this manner, my instructions are to advise you that my client is willing to sign the standard heritage agreement for the Goldfields region, but is not willing to sign the Widji heritage agreement that you have provided. Anglo Australian Resources NL is committed to the protection of Aboriginal heritage and complying with Aboriginal Heritage legislation. Anglo Australian Resources NL is keen to cooperate with the native title parties in this matter, but cannot agree to the terms imposed by you heritage agreement.’
On 2 April 2004, following a request from all parties, new Directions were issued by the Tribunal further extending the dates for submission of contentions and evidence to 23 April 2004 in the case of the Government party, 7 May 2004 for the native title party, and those of the grantee party being due on or before 14 May 2004.
On 22 April 2004 the Government party submitted a further request for an extension of time to 14 May 2004 in order to submit amended contentions following legal advice from the State Solicitor’s Office. Both the native title party and grantee party consented to the request.
The Government party complied with amended Directions on 14 May 2004.
On 18 May 2004 the Tribunal received a further submission from the native title party in the form of a Statement of Contentions. This submission was made in a form common to several other objection applications lodged by the native title party and was not accompanied by affidavit or documentary evidence. Correspondence in the following terms was included:
‘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.’
A Listing Hearing was convened by me on 3 June 2004, at which the native title party was again not represented despite written advice from the Tribunal of the hearing on 1 June 2004, verbal confirmation of attendance by the native title party representative on 2 June 2004, and repeated attempts to contact him by telephone on 3 June 2004. I am satisfied that Mr Frewen had adequate notice of the Listing Hearing but declined to attend. The grantee party was represented and sought to have the objection application dismissed for non-compliance and the Government party concurred with this view.

Conclusion

It is my view that the native title party has failed 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 application, no less than three subsequent revisions of the due date for compliance, and the stated desire of the grantee party on 19 November 2003, 18 February 2004 and 18 March 2004 to execute only the Standard Heritage Agreement and not the Widji Alternative Heritage Agreement. The Statements of Contentions provided by the representative for the native title party on 26 November 2003 and 18 May 2004 do not provide the information required by the Directions (particularly Direction 3(b) and 3(c)) and no explanation has been given as to why supporting evidence was not gathered prior to the objector’s unavailability. On 28 May 2004 I conducted a Listing Hearing in relation to a number of Widji objection matters during which Mr Frewen was present and made submissions in support of further time to comply with the Tribunal’s directions based on Mr Velickovic’s imprisonment. I did not accept the submissions and dismissed the objection applications (Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner). I also had regard to the decision in Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004) where Deputy President Franklyn dismissed a Widji objection in similar circumstances. The present matter is not appreciably different from the matters heard on 28 May 2004 and the general reasons given for dismissal of those matters are applicable here.

Decision

Being satisfied that the applicant (native title party) in this matter failed within a reasonable time to proceed with its expedited procedure objection application and to comply with directions of the Tribunal, the objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
21 June 2004