Leonne Velickovic on behalf of Widji People/Western Australia/Carrick Gold Ltd

[2004] NNTTA 97

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Carrick Gold Ltd, [2004] NNTTA 97 (26 October 2004)

Application Nos:       WO04/64, WO04/65 and WO04/66

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-

Carrick Gold Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

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 licences 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, 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 Clive Miller, Tenement Administration Services

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 7 April 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E27/317 to Carrick Gold Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. 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 licences P27/1637, P27/1638 and exploration licence E27/318 to Carrick Gold Ltd (‘the grantee party’) and included in the notices a statement that it considered that the grants attracted the expedited procedure.

3. Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged expedited procedure objection applications with the Tribunal in relation to P27/1637 and P27/1638 (WO04/64), E27/317 (WO04/65) and E27/318 (WO04/66) on 19 May 2004.  Each of these licences will be referred to henceforth as the ‘proposed licences’.

Relevant Facts

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

   ·     P27/1637 – 34.78 ha, 52 kilometres northerly of Kalgoorlie in the City of Kalgoorlie-Boulder, 88.40% overlap

   ·     P27/1638 – 125.73 ha, 51 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap.

   ·     E27/317 – 41.39 km², 46 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 31.78% overlap.

   ·     E27/318 – 88.72 km², 42 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% 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 applications WO04/64 and WO04/66 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. Directions in the same form were issued in relation to WO04/65 on 26 May 2004, requiring native title party compliance by 6 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 a Preliminary Conference on 15 June 2004, at which time the grantee party representative advised it would prefer to proceed to inquiry on the basis of previous failed negotiations with the native title party.  At this conference the Government party sought to bring forward the date for compliance with Directions.  The native title party representative, Mr Jerome Frewen, was unable to attend the hearing, nor adjourned Preliminary Conferences on 13 July 2004 or 20 July 2004, at each of which the grantee party representative restated the request that the matter proceed to inquiry.  The native title party’s consent to amend the Directions was sought in writing on 21 July 2004, but no response was received, and at an adjourned preliminary conference convened on 4 August 2004 Mr Frewen did not oppose an amendment to the Directions.

4. All parties were advised of an amendment to Directions on 26 August 2004, requiring native title party compliance on or before 20 September 2004 and that of the grantee by 27 September 2004.

5. The Government party complied with Directions initially set for this matter by 25 August 2004 in the case of WO04/64, 31 August 2004 in WO04/65, and 1 September 2004 in WO04/66.  The grantee party complied with the amended Directions on 27 September 2004.

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. No response was received by the Tribunal from the native title party addressing the issues raised in this correspondence and to date neither contentions nor evidence has been received.

7. At the Listing Hearing I convened on 22 October 2004 there had still not been 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 to date 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.

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 applications WO04/64, WO04/65 and WO04/66 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
26 October 2004