Leonne Velickovic on behalf of Widji People/Western Australia/International Goldfields Ltd

[2005] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/International Goldfields Ltd, [2005] NNTTA 7 (8 March 2005)

Application No:        WO04/188

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-

International Goldfields Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            23 February 2005
Date of reasons:              8 March 2005

Catchwords:  Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – proceedings of the Tribunal to be public – established procedures for confidentiality (suppression) orders – failure within a reasonable time to proceed with objection applications – failure to comply with Directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 154, 155, 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, Cazaly Resources Limited

Representative of the     Messrs Clyde Lannan and Greg Abbott, Department of Industry

Government party:        and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 16 June 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 P24/3289; P25/1789-1794; P25/1800-1801; P26/3195-3199; P26/3205-3209; P26/3238 and P27/1601-1610 (‘the proposed licences’) to International Goldfields Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.

2. Leonne Velickovic on behalf of Widji People (Native Title Claim – WC98/27) (‘the native title party’) lodged an expedited procedure objection application (designated WO04/188) with the Tribunal in relation to the proposed licences on 16 August 2004.

Relevant Facts

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

• P24/3289 – 39 hectares, 41 kilometres north-westerly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap;

• P25/1789-1794 – ranging between 131.78 hectares and 191.91 hectares, 14 to 16 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, all 100% overlap;

• P25/1800-1801 – ranging between 166.79 hectares and 191.12 hectares, 22 to 23 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, each 100% overlap;

• P26/3195-3199 – ranging between 119.06 hectares and 205.48 hectares, 14 to 16 kilometres easterly of Kalgoorlie in Kalgoorlie-Boulder City, all 100% overlap;

• P26/3205-3209 – ranging between 100.37 hectares and 203.6 hectares, 21 to 24 kilometres easterly or south-easterly of Kalgoorlie in Kalgoorlie-Boulder City, all 100% overlap;

• P26/3238  – 198.19 hectares, 24 kilometres south-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap; and

• P27/1601-1610 – 197.72 hectares, 17 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap.

1. The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to the expedited procedure objection application on 31 August 2004.  The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 14 February 2005. 

2. The Directions for each of these matters 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 Directions also require that documents containing information of a confidential nature be submitted separately in a sealed envelope, with details of the documents supplied and how the submitter proposes that the Tribunal use them.

3. The Tribunal convened a Preliminary Conference on 14 September 2004, which neither the grantee party nor native title party representatives attended.  An adjourned Preliminary Conference was convened on 28 September 2004, with all parties in attendance.  During this hearing, the grantee representative stated that the grantee had signed a Goldfields Regional Standard Heritage Agreement (RSHA) and was not willing to consider the native title party’s alternative heritage agreement.  On this basis the grantee representative requested that the matter proceed to inquiry as soon as practicable and that Directions compliance dates be brought forward accordingly.  The Government party supported this request.  However, the native title party representative did not consent to any amendment to the Directions, preferring the timetable originally set.

4. On 5 November 2004 I convened a hearing to hear submissions from the parties on the issue of Directions compliance dates, which the native title party representative did not attend.  After hearing the grantee and Government party’s representatives, I amended Directions for this matter, requiring native title party compliance by 18 January 2005. An amended set of Directions was issued to all parties on 9 November 2005, which again drew attention to the consequence for the native title party of non-compliance.

5. On 12 January 2005, the Government party requested an extension of time for filing its statement of contentions.  In view of the Government party’s request, along with the need to keep this and a separate expedited procedure objection application lodged by another native title party (Central West Goldfields) affecting the proposed licences (WO04/118) on a similar compliance schedule, I again amended Directions.  These amended Directions required native title party compliance in this matter on or before 14 February 2005.  All parties were advised in writing of this amendment on 12 January 2005, with the consequences of non-compliance again highlighted.

6. The Government party complied with the amended Directions on 14 January 2005.  No submissions were received on behalf of the grantee party, its representative having indicated on 5 November 2004 that it intended to rely on the Government party’s submissions.

7. At the Listing Hearing I convened on 18 February 2005 there had still been no compliance by the native title party. Mr Frewen made submissions on behalf of the native title party outlining the reasons for non-compliance, including bereavement in the objector’s family. Mr Frewen undertook to provide the necessary statements of contention and supporting evidence by close of business on 21 February 2005. The grantee representative agreed to allow the native title party a further short time to comply, provided no further extensions were granted. I amended Directions accordingly and put the native title party on notice that if there was no compliance by 21 February 2005, I would dismiss the objection application pursuant to s.148(b).

8. Late on 22 February 2005, email correspondence was received from Mr Frewen raising concerns regarding the confidentiality of material, in particular affidavits, submitted to the Tribunal.  Mr Frewen indicated that he had not complied on 21 February 2005 as a consequence of these concerns.

9. The concerns expressed by Mr Frewen were that an officer of the Tribunal had in another matter provided a copy of an affidavit relating to that matter to a person not a party to those proceedings.  The Tribunal understands that the document provided by the Tribunal was a copy of one of the Tribunal’s reasons for determination relating to the expedited procedure which contained details of an affidavit submitted as evidence.  Mr Frewen said that the Widji people’s concerns about this practice meant that they wished to formulate affidavits and contentions in such a way as to ensure that essential confidentiality was maintained.  Mr Frewen had always assumed that documents filed with the Tribunal were confidential at least to the parties to the inquiry.  Resolving the issue of what information was confidential would be time consuming and involve wider consultation with the claim group than previously, Mr Frewen submitted.  Mr Frewen’s client had asked him not to proceed with filing the documents until these issues had been resolved.

10. I do not accept Mr Frewen’s reasons for seeking a further extension of time to enable the native title party to comply with directions. The law in this area is clear and well established. Section 154(1) of the Act says that hearings of the Tribunal in right to negotiate inquiries are to be held in public unless a direction is made by the Tribunal for a private hearing (s 154(3)). In making such a direction due regard must be had to cultural and customary concerns of Aboriginal peoples. Section 155 of the Act permits the Tribunal to direct that evidence or documents must not be disclosed except in such a manner and to such persons as the Tribunal specifies. The current directions (which are similar to those issued by the Tribunal since 1995) provide for confidential information to be submitted to the Tribunal in a separate sealed envelope, with details of the documents supplied and how the submitter proposes that the Tribunal use them. The Tribunal (and Federal Court) have enunciated principles applicable to the making of confidentiality (or suppression) orders (see cases cited in para 7.5: ‘Receipt of restricted evidence’, Guide to future act decision made under the Commonwealth right to negotiate scheme, NNTT, 31 December 2003 (Web site reference:  In this matter, no requests for confidentiality orders have been made by any parties, nor have any documents been submitted in accordance with the confidential information procedure.  The correspondence from Mr Frewen does not, therefore, provide any basis on which a further extension of time to comply with the Tribunal’s Directions should be granted.

11. Since May 2004, I have dismissed a number of Widji objection matters where native title party compliance was an issue (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 common (but not universal) practice not to comply with the Tribunal’s directions. Indeed, in this matter there has been no compliance despite repeated warnings to the native title party representative of the consequences of failure to do so.

12. In this matter I find that the native title party has failed within a reasonable time to proceed with its objections 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. 

13. The objection application WO04/188 was lodged on 16 August 2004, which is over six months ago. It has, therefore, been in the system for some time and one would have expected some steps to have been taken by the native title party to provide an evidentiary basis for their objections within that time, particularly as the native title party has been aware since 28 September 2004 that the grantee party was not prepared to enter into the Widji heritage agreement. Despite the extensions to Directions compliance dates granted in this matter, as far as I can ascertain nothing has been done to try to take even preliminary steps to collect relevant evidence to sustain this objection. From previous matters Mr Frewen and the Widji native title party have been placed on notice of the evidence required under s 237 of the Native Title Act 1993 (Cth) if an objection is to be upheld but have failed to provide it.

Decision

1. 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, objection application WO04/188 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
8 March  2005