Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited/Maincoast Pty Ltd
[2005] NNTTA 37
•30 May 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited/Maincoast Pty Ltd, [2005] NNTTA 37 (30 May 2005)
Application Nos: WO04/257 and WO04/258
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 – WC99/27 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Cazaly Resources Ltd (grantee party)
-and-
Maincoast Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 24 March 2005
Date of reasons: 30 May 2005
Catchwords: Native title – future act – proposed grant of exploration licence 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)
Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd, NNTT WO03/707, [2005] NNTTA 8 (10 March 2005), Hon C J Sumner
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, NNTT WO04/389, [2005] NNTTA 35 (30 May 2005) Hon C J Sumner
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cazaly Resources Ltd, NNTT WO04/395, WO04/396, WO04/397, WO04/398, WO04/399, [2005] NNTTA 36 (30 May 2005) Hon C J Sumner
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
grantee party: Nathan McMahon, Cazaly Resources Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 25 August 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the following prospecting 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 (that is, a future act which can be done without the normal negotiations required by s 31 of the Act) (WO04/257):
P16/2197, P16/2198, P16/2224, P16/2225, P16/2226, P16/2227, P16/2228, P16/2229, P16/2230, P16/2231, P16/2236, P16/2237, P16/2240, P16/2253, P16/2254, P16/2255, P16/2256, P16/2257, P16/2258, P16/2259, P16/2260, P16/2263, P16/2264, P16/2265, P16/2266 and P26/3272
On the same day, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P15/4582 and P15/4583 to Maincoast Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act) (WO04/258).
On 19 September 2004, Leonne Velickovic on behalf of the Widji People (WC98/27) (‘the native title party’) lodged expedited procedure objection applications with the Tribunal in relation to the above prospecting licences ('the proposed licences'). The Widji People native title claim has been entered on the Register of Native Title Claims since 15 June 1998.
Relevant facts
Proposed licences in relation to objection WO04/257 are overlapped 100% by the Widji People registered native title claim. Size and location are as follows:
P16/2197 - 121.08 hectares, 35 kilometres north of Coolgardie, shire of Coolgardie
P16/2198 - 180.4 hectares, 34 kilometres north of Coolgardie, shire of Coolgardie
P16/2224 - 180.86 hectares, 39 kilometres north of Coolgardie, shire of Coolgardie
P16/2225 - 159.13 hectares, 40 kilometres north of Coolgardie, shire of Coolgardie
P16/2226 - 187.12 hectares, 39 kilometres north of Coolgardie, shire of Coolgardie
P16/2227 - 169.12 hectares, 37 kilometres north of Coolgardie, shire of Coolgardie
P16/2228 - 174.64 hectares, 36 kilometres north of Coolgardie, shire of Coolgardie
P16/2229 - 90.2 hectares, 35 kilometres north of Coolgardie, shire of Coolgardie
P16/2230 - 197.87 hectares, 31 kilometres north of Coolgardie, shire of Coolgardie
P16/2231 - 117.67 hectares, 31 kilometres north of Coolgardie, shire of Coolgardie
P16/2236 - 167.75 hectares, 29 kilometres north of Coolgardie, shire of Coolgardie
P16/2237 - 182.04 hectares, 28 kilometres north of Coolgardie, shire of Coolgardie
P16/2240 - 110.79 hectares, 27 kilometres north of Coolgardie, shire of Coolgardie
P16/2253 - 161.95 hectares, 34 kilometres northwest of Coolgardie, shire of Coolgardie
P16/2254 - 195.72 hectares, 33 kilometres north of Coolgardie, shire of Coolgardie
P16/2255 - 161.06 hectares, 32 kilometres north of Coolgardie, shire of Coolgardie
P16/2256 - 191.76 hectares, 32 kilometres north of Coolgardie, shire of Coolgardie
P16/2257 - 191.96 hectares, 31 kilometres north of Coolgardie, shire of Coolgardie
P16/2258 - 198.66 hectares, 29 kilometres north of Coolgardie, shire of Coolgardie
P16/2259 - 121.42 hectares, 30 kilometres north of Coolgardie, shire of Coolgardie
P16/2260 - 118.84 hectares, 30 kilometres north of Coolgardie, shire of Coolgardie
P16/2263 - 176.48 hectares, 34 kilometres north of Coolgardie, shire of Coolgardie
P16/2264 - 121.14 hectares, 35 kilometres north of Coolgardie, shire of Coolgardie
P16/2265 - 23.45 hectares, 44 kilometres north of Coolgardie, shire of Coolgardie
P16/2266 - 5.2 hectares, 44 kilometres north of Coolgardie, shire of Coolgardie
P26/3272 - 182.41 hectares, 11 kilometres northeast of Kalgoorlie, city of Kalgoorlie-Boulder
Proposed licences in relation to objection WO04/258 are overlapped 100% by the Widji People registered native title claim. Size and location are as follows:
P15/4582 - 133.01 hectares, 23 kilometres southwest of Kambalda, shire of Coolgardie
P15/4583 - 135.93 hectares, 22 kilometres northwest of Widgiemooltha, shire of Coolgardie
On 30 December 2004, Linda Champion on behalf of the Central West Goldfields People lodged expedited procedure objection applications in relation to:
(i) some of the same tenements the subject of WO04/257, namely:
·P16/2253 – P16/2260 (WO04/395) (NOTE: the application for P16/2260 was withdrawn on 2 September 2004 and WO04/395 dismissed in relation to it on 27 May 2005);
·P16/2263 – P16/2264 (WO04/396);
·P16/2265 (WO04/397);
·P16/2266 (WO04/398); and
·P26/3272 (WO04/399),
and
(ii) both tenements the subject of WO04/258 (WO04/389).
On 30 May 2005 the Tribunal determined that the expedited procedure was attracted in relation to them (Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, NNTT WO04/389, [2005] NNTTA 35 (30 May 2005) Hon C J Sumner and Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cazaly Resources Ltd, NNTT WO04/395, WO04/396, WO04/397, WO04/398, WO04/399, [2005] NNTTA 36 (30 May 2005) Hon C J Sumner).
In relation to both objections the Tribunal initially made directions on 5 October 2004 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 25 April 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.
At an adjourned preliminary conference on 9 November 2004, at which all parties were represented, the grantee parties' representative advised that the grantees had signed a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region, and because the native title party did not accept this agreement, wished to proceed directly to inquiry. As no agreement between the native title party and grantee party to dispose of the objections could be reached, at the grantee party’s request, with the concurrence of the Government party, and after hearing the parties, directions were amended on 6 December 2004 to enable an inquiry to be conducted as soon as practicable, requiring native title party compliance on or before 11 March 2005.
The Government party complied with the amended directions by 1 Mar 2005 and the grantee party has sought to rely on those contentions. On 15 March 2005 the native title party representative (Mr Jerome Frewen) was reminded via email that compliance for these matters was due on 11 March 2005 and that a Listing Hearing would occur on 24 March 2005. No native title party contentions or evidence have been forthcoming to date. In response to the Tribunal’s email of 11 March 2005, Mr Frewen advised that his clients were considering what evidence to submit in view of the fact that no confidentiality orders were in place in relation to it and that the Tribunal quotes directly from affidavits submitted.
On 24 March 2005 I convened the Listing Hearing at which the native title and grantee parties were unrepresented. On 21 March 2005 the grantee parties' representative notified the Tribunal via email of his inability to attend the hearing and submitted that the objection application be dismissed under s 148(b) on the basis of non-compliance with directions by the native title party. The Government party made the same submission during the hearing.
These matters have been in inquiry since the objection applications were lodged on 19 September 2004 and it has been clear to the native title party since 9 November 2004 that there was no prospect of a mutually agreed outcome. 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 directions having submitted no Statements of Contention or supporting evidence despite having been informed of the possible consequences of a failure to comply. The reasons provided in Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd, NNTT WO03/707, [2005] NNTTA 8 (10 March 2005), Hon C J Sumner which also deals with Mr Frewen’s submissions relating to the confidentiality of evidence are applicable in this matter.
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, the objection applications are dismissed pursuant to s 148(b) of the Native Title Act 1993.
Hon C J Sumner
Deputy President
30 May 2005
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