Leonne Velickovic on behalf of Widji People/Western Australia/Kevin Michael Pavlinovich

[2005] NNTTA 89

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Kevin Michael Pavlinovich, [2005] NNTTA 89 (2 December 2005)

Application No:        WO05/36

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-

Kevin Michael Pavlinovich (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                  Hon CJ Sumner, Deputy President
Place:  Perth
Date:  2 December 2005

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 application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(b)

Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner

Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner

Representative of the

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

Representative of the        

Government party:           Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 26 January 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P16/2268 and P16/2269 (‘the proposed licences’) to Kevin Michael Pavlinovich (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 26 January 2005, Leonne Velickovic on behalf of the Widji People (WC98/27, registered from 15 June 1998) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences.

3. The area, location and extent to which the proposed licences are overlapped by the native title parties are as follows:

• P16/2268 comprises an area of 200 hectares, is 28 kilometres northerly of Coolgardie and is in the Shire of Coolgardie; and

• P16/2269 comprises an area of 110.86 hectares, is 28 kilometres northerly of Coolgardie and is in the Shire of Coolgardie.

1. The Widji native title party overlaps the proposed licences by 100%. The native title claims of the Central West Goldfields People (WC99/29, registered 4 October 1999) and the Maduwongga People also overlap the proposed licences by 100%.  On 23 March 2005, the Central West Goldfields People lodged an expedited procedure objection application with the Tribunal (WO05/95) which was finalised by way of agreement between the parties.  The Maduwongga People did not lodge an objection prior to the closing date and the claim has since been de-registered, depriving the Maduwongga People of procedural rights in relation to the proposed licences.

Relevant Facts

1. The Tribunal made directions on 15 February 2005 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 affidavits on or before 19 September 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.

2. At the first preliminary conference on 22 February 2005, the grantee was not in attendance, nor did he attend an adjourned preliminary conference on 1 March 2005.  At an adjourned preliminary conference on 8 March 2005, the grantee advised that he would consider the Widji alternative heritage agreement (AHA).  The matter was adjourned a further seven times, either due to non attendance by both parties or to allow the grantee further time to consider another agreement more suited to non-corporate prospectors that had been developed for the Goldfields region.  At an adjourned status conference on 1 September 2005, the grantee party advised that neither of these agreements were acceptable, and requested that the matter be determined by the Tribunal according to the timetable set by the directions of 15 February 2005.

3. At a listing hearing convened on 6 October 2005, the grantee party agreed to consider a further AHA, applicable to both the Widji and Central West Goldfields native title parties. An adjourned listing hearing was convened on 24 October 2005, at which time the grantee reinstated his request that the matter be determined by the Tribunal.  During the adjourned listing hearing the native title party requested that directions compliance dates be amended to March 2006 on the basis that his clients would be engaged in “Law business” from mid-December 2005.  This request was reluctantly agreed to by the grantee but was strongly opposed by the Government party.

4. I considered the submissions of the parties on this issue and, noting that “Law business” was not then due to commence for over six weeks, amended directions on 26 October 2005.  Native title party compliance was then required on or before 20 November 2005, prior to the stated commencement of “Law business”.  The Tribunal invited submissions in relation to this decision from the native title party, but none have been received to date.

5. The Government party has complied with directions.  No submissions from the native title party have been forthcoming to date.

1. On 2 December 2005 I convened a listing hearing at which the Government party supported by the grantee party made application to dismiss the objection pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. Mr Frewen responded by seeking further time ‘for the usual reasons’ which were explained to be that his clients were pre-occupied with other matters and because of the impending Law business.

2. It has been clear to native title party since at least 24 October 2005 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 their objection and to comply with the Tribunal’s directions having submitted no statement 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/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner (at [12]-[13]) are applicable in this matter. I note that the native title party habitually fails to comply with the Tribunal’s directions. The Tribunal is prepared to consider applications for more time to comply in appropriate cases including for reasons that native title claimants are not readily available because of Law business. However, in this case I have rejected Mr Frewen’s request for additional time because I am satisfied that even if granted compliance is highly unlikely based on the native title party’s previous non-compliant behaviour. An important factor in considering applications to dismiss for non-compliance with directions is that expedited procedure objections are, as the term implies, supposed to be dealt with as speedily as possible (Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner at [12]).

3. I also note for the record that the Government party has proposed an extra condition to be imposed on the grant of the proposed licence, requiring that the grantee party, if so requested by the Central West Goldfields People not more than ninety days after the grant of the proposed licences, shall within thirty days of the request execute a regional standard heritage agreement in favour of the Central West Goldfields People.  If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji are protected.

Decision

1. Expedited procedure objection application WO05/36 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon CJ Sumner
Deputy President
2 December 2005