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

[2004] NNTTA 104

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, [2004] NNTTA 104 (5 November 2004)

Application No:        WO04/7

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 APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  5 November 2004

Catchwords:  Native title – future act – proposed grant of prospecting licences – 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 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 11 February 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 P16/2199, P16/2200, P16/2201 and P16/2202 (‘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.

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 licences on 11 February 2004 (WO04/7).

Relevant Facts

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

   ·     P16/2199 – 139.45 hectares, 41 kilometres northerly of Coolgardie in the Shire of Coolgardie, 100% overlap

   ·     P16/2200 – 197.33 hectares, 42 kilometres northerly of Coolgardie in the Shire of Coolgardie, 100% overlap

   ·     P16/2201 – 194.25 hectares, 40 kilometres north westerly of Coolgardie in the Shire of Coolgardie, 100% overlap

   ·     P16/2202 – 148.49 hectares, 40 kilometres north westerly of Coolgardie in the Shire of Coolgardie, 100% overlap

2. The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry on 24 February 2004. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 8 October 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.

1. The Tribunal convened an adjourned Preliminary Conference on 11 May 2004, at which time the native title party requested a s 150 conference to help resolve differences between themselves and the grantee party.  I declined this request on 17 June 2004 on advice that the grantee party did not wish to participate in such a conference on the basis that it had executed a Standard Heritage Agreement and wished to deal with the matter in the inquiry process.  This position was reiterated, and a request to bring the times for compliance with Directions forward was made in further conferences on 20 July 2004 and 3 August 2004, neither of which were attended by the native title party representative, Mr Jerome Frewen.  Mr Frewen was advised in writing of the outcomes of each of these conferences.

2. On 12 August 2004, Mr Frewen advised the Tribunal that he did not agree to the grantee’s request for compliance times to be shortened.  Accordingly Directions remained as made on 24 February 2004.  Mr Frewen was reminded of that date for compliance in writing on 16 September 2004.

3. The Government party complied with Directions initially set for both matters by 20 September 2004.  The grantee party has sought to rely on the Government party’s documents. 

4. On 23 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.

5. At a Listing Hearing convened on 22 October 2004, by which time there had still been no compliance by the native title party, Mr Frewen sought a further period of time with which to comply with Directions, while the grantee party indicated that they were not prepared to allow further time for compliance and would prefer that the application be dismissed pursuant to s 148(b) of the Act. The Government party advised that it was inclined to support this submission but given that an objection relating to the proposed tenement by another native title party was still active (WO04/42), it would be appropriate to allow a short extension of time for the Widji native title party. The grantee party concurred. Accordingly I granted an extension of time for compliance, requiring native title party submissions on or before 4 November 2004.

6. At the adjourned Listing Hearing convened by me on 5 November 2004, at which the native title party was not represented and by which time contentions and evidence had still not been received, the grantee party sought dismissal pursuant s 148(b) of the Act. The Government party supported this submission. Although Mr Frewen had written a general letter in relation to a number of matters advising that he intended to provide contentions I agree with the grantee party’s submission and consider that more than adequate time was given either to negotiate an agreement or provide evidence for an inquiry in this matter.

7. 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 usual 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 almost all cases to date failed to comply with the Tribunal’s Directions.

8. 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. 

9. I note that in the case of these proposed licences, an objection application has also been received from the Central West Goldfields native title party.  Until such a time as that matter is determined, the Western Australian Department of Industry and Resources will not be in a position to rule on the grant or otherwise of these proposed licences.

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
5 November 2004