Leonne Velickovic on behalf of Widji People/Western Australia/Anglogold Ashanti Australia Ltd

[2005] NNTTA 97

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Anglogold Ashanti Australia Ltd, [2005] NNTTA 97 (22 December 2005)

Application No:        WO05/370

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-

Anglogold Ashanti Australia Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  22 December 2005

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure 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/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner

Representative of the

native title party:               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 Clive Miller, Tenement Administration Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 13 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E26/106 and E27/248 (‘the proposed licences’) to Anglogold Ashanti Australia Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 18 July 2005, Leonne Velickovic on behalf of Widji People (WC98/27, registered from 15 June 1998) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences.

3. The area, location and extent to which the proposed licences are overlapped by the native title party are as follows:

• E26/106 comprises an area of 2.93 square kilometres, 19 kilometres easterly of Kambalda in the City of Kalgoorlie-Boulder – 100% overlap; and

• E27/248 comprises an area of 29.59 square kilometres, 55 kilometres north-easterly of Kalgoorlie in the City of Kalgoorlie-Boulder – 4.34% overlap.

1. In the case of E26/106 the registered native title claim of the Central West Goldfields People (WC99/29, registered 4 October 1999) also overlaps the proposed licence by 100%. The Central West Goldfields People have not lodged an objection in relation to this proposed licence.   E27/248 is overlapped 100% by the native title claims of both the Central East Goldfields People and the Maduwongga People, neither of which have lodged objections.   The Maduwongga People’s claim has since been de-registered, depriving that group of procedural rights in relation to the proposed licence in any event.

Relevant Facts

1. The Tribunal made directions on 1 August 2005 for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 13 March 2005. The directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

2. At an adjourned preliminary conference on 23 August 2005, at which all parties were represented, the representative for the grantee party, Mr Clive Miller, requested that the objection proceed directly to inquiry on the basis that his client had not in the past been able to reach agreement with Widji, and saw no reason why this occasion should be any different.  In accordance with Tribunal policy that where there is no possibility of agreement the timeframes for compliance will be shortened to expedite the objection inquiry, on 16 September 2005, I approved an amendment to directions requiring compliance by the native title party on or before 12 December 2005, four weeks after the objection closing date.  All parties were advised of the amended dates for compliance by email. 

3. The Government and grantee parties have complied with directions.  No submissions from the native title party have been forthcoming to date.

4. On 20 December 2005 the Tribunal received email correspondence from the representative for the native title party, Mr Jerome Frewen, advising that he would be on annual leave from that day until 21 January 2006, and that all arbitral hearings in relation to Widji should be adjourned until after the Law business period in February 2006.  No extension of the time for compliance was sought.  The Government and grantee parties opposed this adjournment request and accordingly I directed that the listing hearing proceed as scheduled on the basis that the native title party had ample notice of the date and to make alternative arrangements for representation.  No response was received from Mr Frewen.

5. On 22 December 2005 I convened a listing hearing at which the Government party supported by the grantee party made application to dismiss the objection pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. Mr Frewen did not attend the hearing and the native title party was not otherwise represented.

6. It has been clear to native title party since at least 23 August 2005 that there was no prospect of a mutually agreed outcome.  I find that the native title party has failed to comply with the Tribunal’s directions having submitted no statement of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.  The reasons provided in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner (at [12]-[13]) are applicable in this matter. I note that the native title party habitually fails to comply with the Tribunal’s directions. The Tribunal is prepared to consider applications for more time to comply in appropriate cases including for reasons that native title claimants are not readily available because of Law business. However, in this case the native title party’s application was for an adjournment of the listing hearing, rather than for additional time to comply and even were further time for compliance to be permitted I am satisfied that compliance is highly unlikely based on the native title party’s previous non-compliant behaviour.

7. I also note for the record that the Government party has proposed an extra condition to be imposed on the grant of E26/106, requiring that the grantee party, if so requested by the Central West Goldfields People not more than ninety days after the grant of the proposed licences, shall within thirty days of the request execute a regional standard heritage agreement in favour of the Central West Goldfields People.  A similar condition in favour of the Central East Goldfields People has been proposed for E27/248, and I note that the grantee party contends that the Central East Goldfields People did in fact execute such an agreement on 30 June 2005. This agreement, and the proposed condition in relation to E26/106, if acted upon, should assist to ensure that sites of particular significance to the Widji are also protected.  I further note that the extent to which E27/248 is overlapped by the Widji People’s claim is minimal.

Decision

1. Expedited procedure objection application WO05/370 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 December 2005