Leonne Velickovic on behalf of Widji People/Western Australia/Hamill Resources Ltd - [2004] NNTTA 52

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Hamill Resources Ltd, [2004] NNTTA 52 (21 June 2004)

Application No: WO03/555

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

-and-

IN THE MATTER of an inquiry into 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-

Hamill Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:     28 May 2004
Date of reasons:       21 June 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 applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b)
Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004), The Hon EM Franklyn QC
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

Representative of the

native title party: Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

grantee party: Mr Nathan McMahon, International Goldfields Limited.

Representative of the Ms Karen Dougall, State Solicitor’s Office
Government party: Mr Clyde Lannan , Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 21 May 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P24/3801; P24/3802 and P24/3803 to Hamill Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged an expedited procedure objection application regarding the proposed licences with the Tribunal on 15 July 2003.
On 30 July 2003 the Tribunal received correspondence from the grantee party advising that Hamill Resources Ltd had merged with International Goldfields Ltd, with the merged entity being renamed International Goldfields Limited.

Relevant Facts

The area, location, and percentage to which each of the grantee party’s prospecting licences is overlapped by the registered native title claim is as follows:
·    P24/3801 – 43.44ha, 59km north of Kalgoorlie, 100% overlap
·    P24/3802 – 199.67ha, 57km north of Kalgoorlie, 100% overlap
·    P24/3803 – 199.89 ha, 55km north of Kalgoorlie, 100% overlap
The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of an inquiry on 11 August 2003. The Direction in respect of the native title party was as follows:
‘(3)On or before 4 February 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.’
On 5 March 2004 Directions were amended with the consent of all parties to allow further time for negotiation setting compliance by the native title party at 7 April 2004.
The Tribunal convened a Listing Hearing on 1 April 2004, at which time the grantee party advised it would prefer to proceed to Inquiry following the breakdown of negotiations. Negotiations had failed as the grantee party preferred to use a Standard Heritage Protection Agreement which if signed by the grantee party results in the Government party continuing to assert the expedited procedure in relation to the grant. However, at this time parties requested a further amendment to Directions to afford the native title party additional time to comply. This request was granted on 8 April 2004, setting native title party compliance at 7 May 2004.
The Government party complied with Directions initially set on 7 January 2004.
On 17 May 2004 the Tribunal received a submission from the native title party in the form of a Statement of Contentions. This submission was made in a form common to a number of other objection applications lodged by the native title party. The submission was not accompanied by affidavit or documentary evidence. Correspondence from Mr Jerome Frewen (native title party representative) making a request for further time to comply was included, in the following terms:
‘My client, the Objector, wishes to have enquiries heard “on country”, and wishes to prepare Affidavits. However I am advised that he is in Eastern Goldfields regional Prison for another 4-6 weeks, so any further action on these matters should await his release.’
No Statements of Contention have been lodged on behalf of the grantee party as their intent to rely on contentions and evidence submitted by the Government party was stated during a Listing Hearing convened on 21 May 2004 convened by Ms Murphy, the Tribunal’s Acting Senior Caseflow Manager.
At the Listing Hearing on 21 May 2004, Mr Jerome Frewen reiterated his written request of 17 May 2004. The grantee party opposed the native title party’s request for additional time and an ‘on country’ hearing, preferring that these matters proceed directly to inquiry on the papers. The Government party concurred with this view during the hearing, and subsequently reiterated its position in a written submission lodged with the Tribunal on 27 May 2004 in which it submitted that the applications should be dismissed pursuant to s 148(b) of the Act on the grounds that the native title party had failed to comply with the Tribunal’s directions.
A further Listing Hearing was convened by me on 28 May 2004. These matters were heard in conjunction with a number of other Widji objections in which the same request for further time to submit affidavit evidence had been made and where the Government and grantee parties requested dismissal of the objections. In matters WO03/668 and WO03/764 I dismissed the objections on the grounds that the native title party had failed within a reasonable time to proceed with its objections and to comply with the Tribunal’s directions. Written reasons were subsequently provided (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)
On 28 May 2004, I also dismissed the present objection for similar reasons to those set out in paras [19]-[23] of the reasons in WO03/668 and WO03/764 and also having regard to a decision to dismiss in similar circumstances in Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004), The Hon EM Franklyn QC. There is no need to repeat them. I find that the contentions lodged on 17 May 2004 by the native title party do not comply in particular with Direction 3(b) and 3(c) of the initial or amended Directions.
The only other matter I wish to observe is that WO03/555 was lodged on 15 July 2003, which is almost 12 months ago. This matter has, therefore, been in the system for a considerable time and one would have expected some steps to have been taken by the native title party to provide an evidentiary basis for their objection within that time. Mr Frewen has not made any submissions in this respect and as far as I can ascertain nothing has been done to try to take even preliminary steps to collect relevant evidence to sustain the objection.

Decision

Being satisfied that the applicant (native title party) in the application WO03/555 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
21 June 2004