Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited

[2005] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, [2005] NNTTA 4 (28 February 2005)

Application Nos:       WO04/185 and WO04/198

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

-and-

IN THE MATTER of an inquiry 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-

Cazaly Resources Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            25 February 2005
Date of reasons:              28 February 2005

Catchwords:  Native title – future act – proposed grant of 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

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), 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 Nathan McMahon

Representative of the        

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 16 June 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 P16/2241, P16/2242, P16/2243, P24/3867, P24/3868, P24/3869, P24/3870, P24/3871, P24/3872, P24/3873, P24/3874, P24/3875 and P24/3876 (‘the proposed licences’) to Cazaly Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, ones which can be done without the normal negotiations required by s 31 of the Act).

2. On 28 July 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 P16/2193, P16/2194, P16/2195, P16/2196, P16/2203, P16/2204, P16/2205, P16/2206, P16/2207, P16/2208 and P24/3935 (‘the proposed licences’) to Cazaly Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

3. On 16 August 2004, Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged expedited procedure objection applications with the Tribunal in relation to the proposed licences (WO04/185 – s 29 notice of 16 June 2004 and WO04/198 - s 29 notice of 28 July 2004). The Widji native title claim has been entered on the Register of Native Title Claims since 15 June 1998.

Relevant Facts

1. Those proposed licences prefixed P16 are located between 25 and 39 kilometres northerly of Coolgardie or north westerly of Kalgoorlie, in the Shire of Coolgardie.  Those proposed licences prefixed P24 are located between 48 and 57 kilometres northerly of Kalgoorlie in the City of Kalgoorlie-Boulder with the exception of P24/3935, which is located 31 kilometres north westerly of Kalgoorlie on the borders of both the Shire of Coolgardie and the City of Kalgoorlie-Boulder.  The areas of the proposed licences vary from 67.9 hectares to 200 hectares and all are 100% overlapped by the Widji registered native title claim.

1. With respect to WO04/185, on 31 August 2004, the Tribunal initially made Directions 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 affidavit by 14 February 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. Directions for WO04/198 were issued in the same form on 30 August 2004, requiring native title party compliance on or before 28 March 2005.

2. The Tribunal convened an adjourned Preliminary Conference on 28 September 2004 (the first at which the native title party was represented) at which time the grantee party advised that it had signed a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region and therefore requested that the objection application proceed to inquiry.  The grantee also requested that the dates for compliance be brought forward to expedite the inquiry.  The representative of the native title party, Mr Jerome Frewen, did not consent to the amendment of dates for compliance and for this reason I convened a Directions Hearing on 5 November 2004 (at which the native title party was not represented, despite notification of the hearing date at a further adjourned Preliminary Conference on 26 October 2004, and email notification on 29 October 2004) during which I approved the request to amend Directions, requiring Government party compliance on or before 11 January 2005 and that of the native title party by 18 January 2005.  All parties were advised of these dates by correspondence dated 9 November 2004.

3. On 12 January 2005 the Government party requested a short extension of time in which to comply with amended Directions, and on the same date the native title party requested a further two week extension on the basis that its representative was currently out of the country.  Accordingly, and with the concurrence of all parties, I approved a further extension of time, directing that native title party compliance be received on or before 31 January 2005.  All parties were advised of this date by email on 17 January 2005.

1. The Government party complied with amended Directions by 14 January 2004.  The grantee party has sought to rely on the Government party’s documents.

2. On 4 February 2005, by which date no native title party submissions had been received, I convened a Listing Hearing during which I gave all parties leave to submit further contentions in relation to the my determination in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner, relating to the relevance of the RSHA in expedited procedure inquiries. In so doing, I also permitted the native title party a further extension of time for full compliance (ie. provision of a statement of contentions and affidavit or other evidence), directing that all documents be filed on or before 18 February 2005 and that an adjourned Listing Hearing be convened on 25 February 2005. Mr Frewen was advised of the date for compliance and the date of the Listing Hearing by email on 4, 17 and 21 February 2005.

3. Further Government party submissions were received on 18 February 2005.  To date neither contentions nor evidence have been received from the native title party.

4. At an adjourned Listing Hearing convened on 25 February 2004, for which Mr Frewen was unavailable, the Government party sought to have the objection applications dismissed pursuant to s 148(b) of the Act. The grantee party supported this request.

5. 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 is common practice for them 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 most cases failed to comply, or have only partially complied, with the Tribunal’s Directions. While in more recent times there have been greater attempts to comply, the fact remains that in many cases the Widji native title party lodge objections and then fail to prosecute them properly and in accordance with the Tribunal’s directions. In these matters adequate advice of the need to comply was given and an opportunity given by extending the time for compliance.

6. It is now clear that a number of grantee parties wish to proceed on the basis of the RSHA and are not prepared to accept the Widji Alternative Heritage Agreement.  In these cases the Widji native title party will be on notice at the time they lodge expedited procedure objections that agreement is unlikely and an inquiry will be necessary.  They should take early steps to ensure that evidence is available to enable the Tribunal to properly consider in a timely manner whether or not the expedited procedure is attracted.

7. In these matters 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 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
28 February 2005