Leonne Velickovic on behalf of Widji People/Western Australia/Bullion Minerals Ltd

[2004] NNTTA 98

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Bullion Minerals Ltd, [2004] NNTTA 98 (26 October 2004)

Application No:        WO04/63

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

-and-

IN THE MATTER of an inquiry into 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-

Bullion Minerals Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of Dismissal:           22 October 2004
Date of Reasons:             26 October 2004

Catchwords:  Native title – future act – proposed grant of prospecting 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) 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 Shannon McMahon, McMahon Mining Title Services Pty Ltd

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 21 April 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P15/4594 (‘the proposed licence’) to Bullion Minerals Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence on 19 May 2004.

Relevant Facts

1. The area, location, and percentage to which the grantee party’s  prospecting licence is overlapped by the registered native title claim is as follows:

   ·     199.22 hectares, 14 kilometres south westerly of Widgiemooltha in the Shire of Coolgardie, 22.94% overlap

2. 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 26 May 2004. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 20 December 2004. 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.

3. The Tribunal convened an adjourned Preliminary Conference on 20 July 2004, at which time the grantee party representative advised it would prefer to proceed to inquiry on the basis that the grantee had signed a standard heritage agreement, and that it wished dates for compliance to be brought forward.  The native title party representative, Mr Jerome Frewen, was not able to attend this hearing, nor further adjourned Preliminary Conferences convened on 27 July 2004 and 10 August 2004, at which the grantee party representative restated the request that the matter proceed to inquiry.

4. On 11 August 2004, in response to repeated written requests by a Tribunal case officer for native title party instructions regarding the shortening of the time for compliance, Mr Frewen advised that he desired the dates for compliance to be amended owing to “heavy workload commitments”, setting them back a further two months from the dates proposed by the grantee party.  On 18 August 2004 the grantee party confirmed in writing that it did not agree to the amendment requested by the native title party.  The Tribunal’s senior caseflow manager wrote to Mr Frewen on the same day inviting his submissions on the question of compliance dates but no response was received.  Accordingly, I approved the grantee’s request that the dates for compliance be brought forward, requiring compliance by the native title party on or before 20 September 2004.  Mr Frewen was advised of that date for compliance in writing on 19 August 2004. 

5. The Government party complied with Directions initially set for this matter by 1 September 2004.  The grantee party has sought to rely on the Government party’s documents. 

6. On 16 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. A further reminder that compliance was overdue was sent on 29 September 2004. No response was received by the Tribunal from the native title party addressing the issues raised in either correspondence.

7. At the Listing Hearing I convened on 22 October 2004 there had still been no compliance by the native title party and the grantee party submitted that the applications should be dismissed pursuant to s 148(b) of the Act. The Government party supported this submission.

8. 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.

9. In this matter I find that the native title party has failed within a reasonable time to proceed with its objection 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. 

10. The objection application in this matter was lodged on 19 May 2004, which is over five months ago. This matter has, 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 objection 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 this objection. 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

1. Being satisfied that the applicant (native title party) 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
26 October 2004