Leonne Velickovic on behalf of Widji People/Western Australia/Avoca Resources Ltd
[2004] NNTTA 99
•4 November 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Avoca Resources Ltd, [2004] NNTTA 99 (4 November 2004)
Application Nos: WO03/300 WO03/576 WO03/673 WO03/761 WO04/12
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-
Avoca Resources Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of Dismissal: 4 November 2004
Date of Reasons: 4 November 2004
Catchwords: Native title – future act – proposed grant of exploration licences and 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, 148(b), 237
Cases: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
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 Geoff Collis, Avoca Resources 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 exploration licence E15/793 to Avoca Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The Government party also gave notice under s 29 of the Act of its intention to grant the following proposed licences to the grantee party on the dates set out hereunder. Each of the licences the subject of this determination will be referred to as the proposed licences.
30 July 2003 – exploration licence E27/301
13 August 2003 – prospecting licences P27/1550, P27/1551, P27/1552, P27/1553, P27/1554, P27/1555, P27/1556, P27/1557, P27/1558, P27/1559, P27/1560 and P27/1561
10 September 2003 – prospecting licences P25/1739, P25/1740, P25/1741, P25/1742, P25/1743, P25/1744 and P25/1745
25 February 2004 – exploration licence E15/808
Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged expedited procedure objection applications with the Tribunal on the following dates in relation to the proposed licences:
Notification date 26 March 2003; objection lodged 24 March 2003 (WO03/300)
Notification date 30 July 2003; objection lodged 25 July 2003 (WO03/576)
Notification date 13 August 2003; objection lodged 12 August 2003 (WO03/673)
Notification date 10 September 2003; objection lodged 9 September 2003 (WO03/761)
Notification date 25 February 2004; objection lodged 20 February 2004 (WO04/12)
Relevant Facts
The area, location, and percentage to which the grantee party’s proposed licences are overlapped by the registered native title claim is as follows:
E15/793 – 32.21 km², 14 kilometres northerly of Widgiemooltha in the Shire of Coolgardie, 100% overlap
E27/301 – 8.85 km², 31 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1550 – 199.02 hectares, 17 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1551 – 180.88 hectares, 16 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1552 – 168.51 hectares, 15 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1553 – 195.1 hectares, 17 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1554 – 197.72 hectares, 17 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1556 – 198.6 hectares, 19 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1557 – 199.1 hectares, 17 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1558 – 199.47 hectares, 15 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1559 – 199.53 hectares, 17 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1560 – 199.58 hectares, 15 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P27/1561 – 199.19 hectares, 15 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P25/1739 – 199.85 hectares, 23 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P25/1740 – 199.86 hectares, 24 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P25/1741 – 192.43 hectares, 25 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P25/1742 – 199.84 hectares, 23 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P25/1743 – 196 hectares, 24 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P25/1744 – 175 hectares, 23 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
P25/1745 – 121.13 hectares, 25 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap
E15/808 – 49.74 km², 3 kilometres northerly of Widgiemooltha in the Shire of Coolgardie, 100% overlap
With respect to WO03/300, the Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to the expedited procedure objection application on 10 April 2003. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 4 November 2003. Directions for each of the later objections to the grantee party’s proposed licences were set on the following dates, requiring native title party compliance in the same form as WO03/300 on or before the dates listed:
WO03/576 – Directions set on 19 August 2003, requiring native title party compliance by 29 March 2004
WO03/673 – Directions set on 26 August 2003, requiring native title party compliance by 14 April 2004
WO03/761 – Directions set on 26 September 2003, requiring native title party compliance by 10 May 2004
WO04/12 – Directions set on 2 March 2004, requiring native title party compliance by 18 October 2004
The Directions for each of these matters 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.
The Tribunal convened a Preliminary Conference for WO03/300 on 16 September 2003, at which time the grantee party indicated that it would like to resolve the matter by agreement and, in order to facilitate this process, requested that all Avoca Resources matters have compliance with Directions amended to match compliance dates set for WO03/761. All parties agreed to this request, and accordingly I approved an amendment to Directions, requiring compliance by the native title party in WO03/300, WO03576, WO03/673 and WO03/761 on or before 10 May 2004.
A Preliminary Conference for WO04/12 was convened on 16 March 2004, at which time the grantee party requested that each of the aforesaid matters have compliance dates amended once again to bring them in line with those set for WO04/12. This request was reiterated in Status Conferences convened on 13 and 22 April 2004. The native title party supported this request, as did the Government party on the basis of the grantee party’s advice that negotiations for a regional agreement were ongoing. Accordingly I amended Directions for each of the matters subject to this determination to require native title party compliance by 18 October 2004. Parties were advised in writing of this amendment on 23 April 2004.
At an adjourned Status Conference on 8 September 2004, the grantee party advised it now wished the matter to proceed to inquiry on the basis that negotiations had broken down and it wished to rely on the Standard Heritage Agreement (negotiated by the Government party , the native title party representative body for the area of the claim, the Goldfields Land & Sea Council and industry), which is not acceptable to the native title party. The native title party representative, Mr Jerome Frewen, was not able to attend this hearing, but was advised of the outcomes and reminded of the due date for compliance in writing on the same day. In my view more than adequate time has been allowed by the Tribunal to enable the parties to negotiate an agreement about the objection.
The Government party complied with amended Directions in each matter on 30 September 2004.
On 28 September 2004, the Tribunal wrote to the native title party and all other parties pointing out that the consequences of non-compliance with Directions may be dismissal of the objection under s 148(b) of the Act. No response was received by the Tribunal from the native title party addressing the issues raised in this correspondence.
The grantee party complied with amended Directions on 11 October 2004.
At the Listing Hearing I convened on 4 November 2004 there had still been no compliance by the native title party and the Government party submitted that the applications should be dismissed pursuant to s 148(b) of the Act. Mr Frewen was invited to make submissions on behalf of the native title party in response to the Government party’s submission but declined to do so.
Since May 2004, I have dismissed a number of Widji objection matters where native title party compliance was an issue and where the Government and grantee parties requested dismissal of the objections (see for example, 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). In that matter I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13]) on the use of the power to dismiss an objection application under s 148(b) of the Act for failure to comply with the Tribunal’s directions. One of the factors to be taken into account is the previous conduct of the objector, such as previous failures to comply with the Tribunal’s directions. Based on the Tribunal’s experience in this and previous matters I have considered involving the Widji native title party, I have concluded that it has become their practice not to comply with the Tribunal’s directions. It has become general practice for the Widji native title party to attempt to negotiate an agreement with a grantee party to secure withdrawal of an objection, but if no agreement can be reached and an inquiry becomes necessary they have, in all matters, failed to comply with the Tribunal’s directions.
In this matter I find that the native title party has failed within a reasonable time to proceed with its objections and to comply with the Tribunal’s initial or amended Directions, having submitted no Statements of Contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.
The objection application with respect to WO03/300 was lodged on 24 March 2003, which is over eighteen months ago, and the remainder between this date and February 2004. Each of these matters have, therefore, been in the system for some 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 these objections. From previous matters Mr Frewen and the Widji native title party have been placed on notice of the evidence required under s 237 of the Native Title Act 1993 (Cth) if an objection is to be upheld but have failed to provide it.
Decision
Being satisfied that the applicant (native title party) failed within a reasonable time to proceed with its expedited procedure objection applications and to comply with directions of the Tribunal, objection applications WO03/300, WO03/576, WO03/673, WO03/761 and WO04/12 are dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
4 November 2004
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