Leonne Velickovic on behalf of Widji People/Western Australia/ David John Frazer, Graham Alfred Hawks - [2004] NNTTA 39

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/ David John Frazer, Graham Alfred Hawks [2004] NNTTA 39 (10 June 2004)

Application No: WO03/698

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

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IN THE MATTER of an Inquiry into an expedited procedure objection application

Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)

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The State of Western Australia (Government party)

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David John Frazer, Graham Alfred Hawks (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   The Hon EM Franklyn, QC
Place:  Perth
Date of dismissal:     3 June 2004
Date of reasons:        10 June 2004

Catchwords: Native title – future act – proposed grant of prospecting licence expedited procedure application – failure to comply with Directions – failure within a reasonable time to proceed with objection application - objection application dismissed.
Legislation:Native Title Act 1993 (Cth) s148(b).

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On the 27 August 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P26/3092 (‘the licence’) to David John Frazer and Graham Alfred Hawks (‘the Grantee’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 25 August 2003, Leonne Velickovic on behalf of Widji People (‘the Native Title party’) lodged an expedited procedure objection application with the Tribunal, relying on each of the provisions of s 237 of the Act and outlining the evidence it would adduce.

Relevant Facts

The Licence the subject of this objection is situated wholly within the Widji Native Title Claim, covers an area of 94.69 hectares, and is located on a variety of land tenures:
·   Pastoral lease 3114/1214, commonly known as Hampton Hill and vested in BC, CBC, CFC and JLC Jones;
·   Lease 332/1909, also vested in BC, CBC, CFC and JLC Jones;
·   Crown Reserve 17642;
·   Crown Grant – Hampton Locations 31 and 32, owned freehold by Australian Rail Track Corporation Ltd
·   Public road; and
·   A portion of Unallocated Crown Land.
On 16 September 2003 Deputy President CJ Sumner accepted the objection application and made Directions for the conduct of the inquiry in the following terms:
(1)   A status conference (if necessary) will be held on 17 March 2004.
(2)   On or before 16 April 2004 the State is to provide to the Tribunal, the objector and the grantee a statement of contentions and documents relevant to the Inquiry including:
(a)     a topographical map or maps of an appropriate scale marked with:
ithe areas of the licence/s and the location of registered sites under the Aboriginal Heritage Act 1972; and
iiboundaries of various tenures of land within and overlapping the boundaries of the tenement with details of the nature of each such tenure.
(b)     the details of any Aboriginal community within and in the vicinity of the licence/s;
(c)     the details of the registered sites under the Aboriginal Heritage Act 1972; and
(d)     Mining Tenement documents, including:
icopies of the application for the licence/s;
iicopies of the proposed Schedule of Endorsements and Schedules of Conditions;
iiidetails of any current mining tenement on or overlapping the licence area and whether it was the subject to the right to negotiate provisions of the Native Title Act; and
ivavailable details of prior mining tenements granted on or overlapping the same area including the date of the grant and the date of expiry.
(3)   On or before 23 April 2004 the native title party shall provide the following to the Tribunal and each other party:
(a)     a statement of contentions.
Statement of contentions to include:
·a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
·a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement.
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
(4)   On or before 30 April 2004 the grantee party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions; and
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
(5)   A listing hearing (if necessary) will be held on 6 May 2004.
(6)   Liberty is given to apply to vary these directions or for a relisting of this hearing.
(7)   Parties are asked to note that:
·if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended)); and
·a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.
·As far as practicable parties are to provide evidence in documentary form (see paragraph 3.16 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal 8 February 2002 and in particular para 3.16.4).

In a letter sent to each party with a copy of the said directions, attention was again drawn to the possibility of dismissal for non-compliance by the Native Title party with the directions to be complied with by it.
At Preliminary Conferences held on 30 September 2003 and 7 October 2003, at which the Native Title party was represented, the grantee advised that, having regard to the small area of land the subject of the proposed licence and that a railway line has been constructed on most of it, he wanted the Native Title Party to withdraw the objection. The information provided by the State reveals the railway line to be on freehold land the subject of the proposed licence which freehold land occupies 79.19 hectares of the proposed licence area.
During a Status Conference held on 18 March 2004, at which the Native Title party was not represented, the grantee reiterated that view.
An adjourned Status Conference was held on 31 March 2004, at which the Native Title party was again unrepresented. During this conference the grantee advised that during a recent conversation with the representative for the Native Title party, Mr Jerome Frewen had advised that the objection would be withdrawn if payment was made to the Native Title Party. The grantee stated that he would not make such a payment, after which the Tribunal case manager advised the matter would go to Inquiry and that compliance was due as per directions made 16 September 2003. The matter was adjourned to a listing hearing on 6 May 2004.
On 2 April 2004 the Native Title party representative was advised in writing that the matter would now proceed to Inquiry, and on 22 April 2004 it was reminded in writing of the due date for compliance.
The Government party complied with the said directions by 14 April 2004. There was no compliance by the Native Title party by its due date for compliance (23 April 2004) and no request for an extension of time for compliance, either in written form or otherwise until 6 May 2004.
At the listing hearing on 6 May 2004 the grantee repeated its wish that the matter go to Inquiry. Mr Frewen for the Native Title party requested an “adjournment of compliance”. The dates then proposed provided for compliance by the Native Title party by 20 May 2004, by the grantee by 27 May 2004 and for a listing hearing to be held on 3 June 2004. On 7 May 2004 Deputy President Sumner varied the compliance and listing hearing dates accordingly and Mr Frewen was advised of the variations in writing the same day and asked to note that the matter was going on to Inquiry.
On 17 May 2004 the Tribunal received from the representative for the Native Title party documents described by him in a covering letter as “Statements of Contentions in relation to a number of matters, for which statements were due, or are due”. The letter advised that the Native Title party wished the “enquiries” to be held “on country” and wished to prepare affidavits, but that as the representative had been advised that the Objector (Mr Velickovic) “is in Eastern Goldfields regional prison for another 4-6 weeks”, “any further action on these matters should await his release”. The number of matters there referred to were listed in ink on the covering letter and included the present matter. Apart from minor variations in some of them, the Contentions for each such matter are identical.
The Statement of Contentions is extensive and is directed to a submission that the expedited procedure is not attracted to the proposed future act, that the grantee should execute the Widji Peoples’ Alternative Standard Heritage Agreement, and that unless the Grantee has executed a heritage agreement the expedited procedure under the Act cannot apply. In this and generally the contentions ignore the provisions of s 32 of the Act and are not directed to the issues raised by s 237 of the Act. Towards the end of the submission the contentions allege that the Widji People continue to visit the “application area” for traditional purposes, have camped “at these areas” since time immemorial, that their present and past activities “on the application areas” include hunting and gathering, camping, the lighting of fires and the enjoyment of cultural and educational activities, the rehabilitation of waterholes, extraction of resources from the land and various cultural pursuits. The contentions assert that the grant of the tenement without an agreement and recognition of such activities under a heritage and visiting protocol will cause “distress and anguish” to the Widji People and “violate s 237 of the Act”. Finally, the contentions assert that because the Grantee refuses to enter into the Widji Alternative Heritage Agreement (with or without amendment), the “application does not qualify for the expedited procedure”.
There is no attempt in the Native Title party’s contentions to provide therein or therewith the information required by direction 3 of the directions of 16 September 2003. There is no reason given for the failure to lodge them within the period of nearly eight months set by such directions or the extended period. There is no reason given why the statements of evidence required by such directions have not been provided, nor any as to why the matter should be heard on country.
On 30 May 2004 the Tribunal received correspondence from the Grantee advising that it relied on the Government party contentions. On 2 June 2004 the Grantee representative further advised that he was likely to be unavailable for the Listing Hearing of 3 June 2004 owing to work commitments, but opposed any further extension of time being granted to the Native Title party.
The Native Title parties representative did not appear at the listing hearing on 3 June 2004, the date for which had been fixed as a result of his request for an extension of time for compliance with directions, and notwithstanding the efforts to contact Mr Frewen at the time of the hearing, verbal confirmation of the hearing date at the previous Listing Hearing of 6 May 2004, and written confirmation on 7 May 2004 and 27 May 2004. It is clear that the Native Title party has made no effort to comply with the directions made and so proceed with its objection application. That conclusion is supported by its failure to comply with the directions of 16 September 2003 following advice on 2 April 2004 and 22 April 2004 that the matter was to go to Inquiry. It is also an inescapable inference, in my view, from the content of the contentions, which do not provide the information required by the directions to enable the objection application to proceed, from his failure to attend the listing hearing date of 3 June or to give notice thereof and from his non-availability to be contacted at the time of the hearing. All these matters earlier referred to together lead to the positive inference that the Native Title party was continuing to direct its efforts towards negotiating an agreement in terms of the “Widji Agreement” despite advice that the objection application would proceed to Inquiry, and was not concerned with progressing its objection application or compliance with directions.
I am satisfied that the Native Title party has failed within a reasonable period of time to proceed with its objection application. The Native Title party has been aware that the matter would go to Inquiry since 2 April 2004, yet has done nothing within the time set by directions to comply therewith to enable the issues raised by s 237 of the Act to be dealt with and nothing else that can be construed as proceeding with that application.

Decision

Being satisfied that the Native Title party failed within a reasonable time to proceed with its objection application and to comply with the directions of the Tribunal, I dismissed the objection application on 3 June 2004 pursuant to the provisions of s 148(b) of the Act.

Hon EM Franklyn QC
Deputy President
10 June 2004