Leonne Velickovic on behalf of Widji People/Western Australia/Frederick Charles Saunders
[2005] NNTTA 10
•14 March 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Frederick Charles Saunders, [2005] NNTTA 10 (14 March 2005)
Application No: WO03/372
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Frederick Charles Saunders (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 11 March 2005
Date of reasons: 14 March 2005
Catchwords: Native title – future act – proposed grant of prospecting licence – 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)
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
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
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: Kevin Connell, Austwide Mining Title Management Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 9 April 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P26/3084 (‘the proposed licence’) to Frederick Charles Saunders (‘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).
On 7 April 2003, Leonne Velickovic on behalf of Widji People (WC98/27) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence. The Widji native title claim has been entered on the Register of Native Title Claims since 15 June 1998.
Relevant facts
The proposed licence comprises an area of 10.85 hectares, 34 kilometres north easterly of Kambalda, in the City of Kalgoorlie-Boulder, and is overlapped 100% by the Widji registered native title claim.
The Tribunal initially made directions on 30 April 2003 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 8 December 2003. 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.
The Tribunal was unsuccessful in attempts to contact the grantee party for preliminary conferences convened between 20 May 2003 and 2 July 2004 and, as a consequence, this matter was adjourned to the non-participating grantee list. Following a Government party request during the non-participating grantee list convened on 7 November 2003, directions were amended to bring this matter in line with another objection application concerning the same parties. Amended directions required native title party compliance on or before 4 February 2004, but these were subsequently vacated following repeated non-attendance at conferences on the part of the grantee party.
On 2 July 2004 the Tribunal and all parties were advised via a telephone conversation from Mr Saunders that the grantee now wished to progress the application for the proposed licence. On 5 November 2004 the Tribunal convened a further non-participating grantee list at which Mr Saunders advised that he wanted a further month to consider the issue as he was looking to a joint venture agreement with a company which would then represent him. At a conference convened by me on 10 December 2004, Mr David Saggers representing the grantee party, advised that a joint venture had been negotiated and that Harmony Gold Operations Ltd would now handle the matter on behalf of Mr Saunders. (NOTE: the joint venture agreement is actually with South Kal Mines Pty Ltd, a wholly owned subsidiary of Harmony.)
At an adjourned conference convened by me on 17 December 2004, Mr Kevin Connell, now representing the grantee party, advised that the grantee had now signed a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region and had forwarded that agreement to the Widji native title party. Mr Jerome Frewen, representing the native title party, advised that the Widji People did not accept that agreement and proposed a Widji Alternative Heritage Agreement (‘Widji AHA’), which was in turn rejected by the grantee. In the face of no agreement about disposition of the objection I reset directions with the consent of all parties, taking into account Mr Frewen’s submission that Widji law business would preclude compliance before mid February 2005. I advised Mr Frewen of the possibility of dismissal if there was no compliance by his client on the due date. Native title party compliance was required on or before 25 February 2005.
The Government and grantee party complied with the directions. No native title party contentions or evidence have been forthcoming to date despite a reminder to Mr Frewen via email correspondence on 17 February 2005 that compliance for the native title party was imminent. On 9 March 2005 a second reminder was sent advising of the Listing Hearing date and the possible consequences of non-compliance.
On 11 March 2005 I convened a Listing Hearing at which the Government party supported by the grantee party made application to dismiss the objection application under Section 148(b) on the basis of non-compliance with directions by the native title party. Mr Frewen did not attend this hearing despite being aware of it and arrangements being made for his participation by telephone.
Since May 2004, I have dismissed a number of Widji objection pursuant to s 148(b) of the Act (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 where I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13])). One of the factors to be taken into account is the previous conduct of the objector in failing to comply. I have previously found that it has become common (but not universal practice) for the Widji native title party not to comply with the Tribunal’s directions (see for example 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 at [15]-[16]). This case is another example.
This matter has been in inquiry since the objection document was lodged on 7 April 2003. Although there was delay because of the grantee party’s non-participation the native title party was aware from at least July 2004 that the grantee party wished to proceed with obtaining the grant of the tenement. The directions set on 17 December 2004 were made with the consent of all parties. 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
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
14 March 2005
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