Leonne Velickovic on behalf of Widji People/Western Australia/Anglogold Australia Ltd
[2004] NNTTA 48
•21 June 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Anglogold Australia Ltd, [2004] NNTTA 48 (21 June 2004)
Application Nos: WO03/302 WO03/304 WO03/362 WO03/363
WO03/388 WO03/760 WO03/788
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-
Anglogold Australia Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal:Hon C J 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 prospecting and exploration 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
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 Mr John Millikan, Exploration Services Manager,
grantee party Anglogold Australia Ltd
Representative of the
Government party Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 26 March 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 P26/3035, P26/3046, P26/3050, P26/3051, P26/3052, P26/3055, P26/3060, P26/3061, P26/3062 and P26/3065 to Anglogold Australia Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure. On 23 March 2004, Leonne Velickovic on behalf of the Widji People (‘the native title party’) made expedited procedure objection application regarding the proposed licences (WO03/302).
On 26 March 2003 the Government party also gave notice under s 29 of the Act of its intention to grant exploration licences E15/715, E15/737 and E15/758 to the grantee party and included in that notice a statement that it considered that the grant attracted the expedited procedure. On 23 March 2004, Leonne Velickovic on behalf of the Widji People (‘the native title party’) made expedited procedure objection application regarding the proposed licences (WO03/304).
On 9 April 2003 the Government party gave notice under s 29 of the Act of its intention to grant prospecting licence P15/4484 to 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 regarding the proposed licence (WO03/362).
On 9 April 2003 the Government party gave notice under s 29 of the Act of its intention to grant exploration licence E15/574 to 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 regarding the proposed licence (WO03/363).
On 23 April 2003, the Government party gave notice under s 29 of the Act of its intention to grant prospecting licences P25/1708, P25/1710, P25/1712, P26/3041, P26/3042, P26/3043, P26/3044, P26/3045, P26/3072, P26/3073, P26/3145 and P26/3146 to the grantee party and included in the notice a statement that it considered that the grant attracted the expedited procedure. On 24 April 2003 Leonne Velickovic on behalf of Widji People (‘the native title party’) made an expedited procedure objection application regarding the proposed licences (WO03/388).
On 10 September 2003, the Government party gave notice under s 29 of the Act of its intention to grant exploration licence E25/223 to the grantee party and included in the notice a statement that it considered that the grant attracted the expedited procedure. On 9 September 2003 Leonne Velickovic on behalf of Widji People (‘the native title party’) made an expedited procedure objection application regarding E25/223 (WO03/760).
On 24 September 2003, the Government party gave notice under s 29 of the Act of its intention to grant prospecting licence P24/3794 to the grantee party and included in the notice a statement that it considered that the grant attracted the expedited procedure. On 30 September 2003 Leonne Velickovic on behalf of Widji People (‘the native title party’) made an expedited procedure objection application regarding P24/3794 (WO03/788).
The area, location, and percentage to which each of the proposed licences is overlapped by the registered native title claim is as follows:
· WO03/302:
- P26/3035 – 157.15 ha, 31 kms north-east of Kambalda, 100% overlap
- P26/3046 – 69.41 ha, 36 kms north-east of Kambalda, 91.6% overlap
- P26/3050 - 196.94 ha, 29 kms north-east of Kambalda, 100% overlap
- P26/3051 – 176.7 ha, 29 kms north-east of Kambalda, 100% overlap
- P26/3052 – 149.88 ha, 29 kms north-east of Kambalda, 100% overlap
- P26/3055 – 181.6 ha, 34 kms north-east of Kambalda, 5.8% overlap
- P26/3060 – 128.46 ha, 30 kms north-east of Kambalda, 100% overlap
- P26/3061 – 121.28 ha, 31 kms north-east of Kambalda, 79.6% overlap
- P26/3062 – 198.01 ha, 31 kms north-east of Kambalda, 34% overlap
- P26/3065 – 178.27 ha, 29 kms north-east of Kambalda, 100% overlap
· WO03/304:
- E15/715 – 23.42 km², 24 kms south-east of Kambalda, 100% overlap
- E15/737 – 2.93 km², 31 kms east of Kambalda, 100% overlap
- E15/758 – 52.71 km², 39 kms south-east of Kambalda, 69. 8% overlap
· WO03/362:
- P15/4484 – 103.05 ha 31 kms east of Kambalda, 100% overlap
·WO03/363:
- E15/574 – 76.14 km², 28 kms south-east of Kambalda, 100% overlap
· WO03/388:
- P25/1708 – 17.63 ha, 36 kms north-east of Kambalda, 100% overlap
- P25/1710 – 185.89 ha, 39 kms north-east of Kambalda, 100% overlap
- P25/1712 – 13.31 ha, 40 kms north-east of Kambalda, 100% overlap
- P26/3041 – 126.35 ha, 37 kms north-east of Kambalda, 100% overlap
- P26/3042 – 118.1 ha, 37 kms north-east of Kambalda, 82.6% overlap
- P26/3043 – 187.58 ha, 37 kms north-east of Kambalda, 73.75% overlap
- P26/3044 – 133.38 ha, 35 kms north-east of Kambalda, 99.5% overlap
- P26/3045 – 101.98 ha, 35 kms north-east of Kambalda, 100% overlap
- P26/3072 – 156.86 ha, 37 kms north-east of Kambalda, 2.3% overlap
- P26/3073 – 156.62 ha, 36 kms north-east of Kambalda, 10.5% overlap
- P26/3145 – 4.15 ha, 35 kms north-east of Kambalda, 100% overlap
- P26/3146 – 121.33 ha, 31 kms north-east of Kambalda, 65.7% overlap
· WO03/760:
- E25/223 - 2.94 km², 24 kms east of Kalgoorlie, 100% overlap
·WO03/788:
- P24/3794 – 48.34 ha, 57 kms north-west of Kalgoorlie, 100% overlap
Relevant Facts
With respect to WO03/302 and WO03/304, the first of the objections to the expedited procedure in this group, the Tribunal made Directions for all parties to produce contentions and evidence for the conduct of the inquiry on 10 April 2003. The Direction in respect of the native title party was as follows:
‘(3)On or before 24 November 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.’
Directions for compliance with respect to the native title party in the remaining objection applications were on or before the following dates:
·WO03/362 and WO03/363 - 8 December 2003;
·WO03/388 – 22 December 2003;
·WO03/760 – 10 May 2004; and
·WO03/788 – 24 May 2004.
On 1 October 2003 Directions in WO03/302, WO03/304, WO03/362, and WO03/363 were amended with the consent of all parties to allow further time for negotiations. Compliance for the native title party was accordingly set at 22 December 2003, in line with the Directions made on 9 May 2003 in WO03/388.
On 4 February 2004 a further amendment to the dates for compliance in these matters was approved by the Tribunal, the revised date for compliance by the Government party being 5 April 2004, that of the native title party being 14 April 2004, and grantee compliance now being due on or before 21 April 2004. This amendment was agreed to by all parties, the grantee party advising that it would like all matters dealt with together, whether by agreement or determination following an Inquiry.
The Tribunal convened a Status Conference on 3 March 2004, at which time the grantee party advised it would prefer to proceed to Inquiry following the breakdown of negotiations, despite the native title party’s request that the matter be referred for mediation assistance under s 150 of the Act. This advice was repeated at a further Status Conference on 10 March 2004, at which the native title party was not represented, but following which the Widji Peoples’ representative was advised of the outcomes.
On 22 March 2004 the Tribunal received a letter from Mr Frewen, native title party representative, requesting a general adjournment of outstanding Widji objections (including for WO03/302, WO03/304, WO03/362 and WO03/363) for six weeks to obtain legal advice about the Government party’s new policy relating to the expedited procedure (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).
During a Status Conference held on 24 March 2004, Mr Frewen reiterated his request for a six week extension of time for compliance. The grantee party advised that it wished Directions to remain as currently set.
The Government party complied with Directions on 6 April 2004.
On 2 April 2004, in order to bring together all objection applications involving the Widji People and Anglogold Australia Ltd, new Directions were issued by the Tribunal. These Directions were made for all matters the subject of this decision and dates for compliance with respect to the native title party were set at 7 May 2004, compliance for the grantee party being due on or before14 May 2004. Mr Frewen agreed with this timetable.
On 22 April 2004 the Government party submitted a further request for an extension of time 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 further amended Directions and the request was accordingly approved. Compliance for the Government party was now due by 14 May 2004, that of the native title party by 21 May 2004 and that of the grantee party by 28 May 2004.
The Government party complied with amended Directions on 14 May 2004.
On 19 May 2004 the Tribunal received a submission from the native title party in the form of a Statement of Contentions which was common to several other objection applications lodged by the native title party. The submission 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.’
The Tribunal received a Statement of Contentions from the grantee party for each of the seven matters the subject of this decision on 25 May 2004.
A Listing Hearing was convened by me on 3 June 2004, at which the native title party was not represented despite written advice from the Tribunal of the hearing given on 1 June 2004, verbal confirmation of attendance by Mr Frewen 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 applications dismissed for non-compliance with the Tribunal’s directions 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 applications, and the stated desire of the grantee party to progress the matters to Inquiry since at least 3 March 2004. The Statement of Contentions provided by the representative for the native title party on 19 May 2004 does not provide the information required by the Directions (particularly Directions 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 because of his imprisonment. 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). Having regard also 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 matters are 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 each of the applications WO03/302, WO03/304, WO03/362, WO03/363, WO03/388, WO03/760 and WO03/788 failed within a reasonable time to proceed with its expedited procedure objection applications 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
21 June 2004
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