Leonne Velickovic on behalf of Widji People/Western Australia/Kim James Harris and Peter Romeo Gianni - [2004] NNTTA 76

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Kim James Harris and Peter Romeo Gianni, [2004] NNTTA 76 (1 September 2004)

Application No: WO03/769

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

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

-and-

The State of Western Australia (Government party)

-and-

Kim James Harris and Peter Romeo Gianni (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            30 August 2004
Date of reasons:              1 September 2004

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), 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

Representative of the

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

Representative of the

grantee party: Mr Michael Lewis, Rubysands Pty Ltd, Mining Tenement Consultants

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 10 September 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 P25/1711 to Kim James Harris and Peter Romeo Gianni (‘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 with the Tribunal in relation to P25/1711 on 9 September 2003 (designated WO03/769).

Relevant Facts

The area, location, and percentage to which the grantee party’s prospecting licence is overlapped by the registered native title claim is as follows:
· P25/1711 – 121.10ha, 25 km east of Kalgoorlie, 100% overlap
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 26 September 2003. The Direction in respect of the native title party was as follows:
‘(3)On or before 10 May 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.’
At the request of the parties, an amendment to Directions was made on 28 April 2004 to allow further time for the parties to negotiate that re-set native title party compliance to 11 June 2004. A further amendment to Directions was made, by consent of the parties, on 23 July 2004 that again re-set native title party compliance to 11 August 2004.
The Tribunal convened an adjourned Status Conference on 28 July 2004, at which time the grantee party representative advised it would prefer to proceed to inquiry following the breakdown of negotiations. As the native title party representative, Mr Jerome Frewen, was unable to attend this hearing, an adjourned Listing Hearing was convened on 4 August 2004, at which the grantee party representative restated the request that the matter proceed to inquiry. At this hearing the issue of the imminent native title party compliance date was discussed, with Mr Frewen confirming that this date could be met.
The Government party complied with Directions initially set for this matter on 14 March 2004.
On 13 August 2004, the Tribunal wrote to the native title party and all other parties in the following terms:
On 4 August 2004 you attended an adjourned Listing Hearing into this matter during which you advised that you would be in a position to comply by the due date. However, as at 13 August 2004 (by which time the native title party was due to comply with the amended directions), there has been no compliance by or on behalf of the native title party in this matter. As pointed out in the Directions, under Section 148 (b) of the Native Title Act 1993, where a native title party fails to comply with a direction, the Tribunal may dismiss the application.
Please be advised that if you do not comply by the date of the further adjourned Listing Hearing the Tribunal will consider whether it is appropriate to dismiss this objection application.
No response was received by the Tribunal from the native title party addressing the issues raised in this correspondence.
At the adjourned Listing Hearing I convened on 30 August 2004, the Government party submitted that the applications should be dismissed pursuant to s. 148(b) of the Act on the grounds that the native title party has failed to comply with the Tribunal’s directions. The grantee party supported this submission.
I have recently dismissed a number of Widji objection matters where native title party compliance was an issue and where the Government and grantee parties requested dismissal of the objections (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). It now appears to have become general practice for the Widji native title party to attempt to negotiate an agreement with a grantee party to secure withdrawal of an objection, but if no agreement can be reached and an inquiry becomes necessary they will fail to comply with the Tribunal’s directions.
In this matter, in accordance with the reasons outlined in the above decisions, I also 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. The consequence of a failure to comply with Directions (i.e. the possibility of dismissal of the objection pursuant to s 148(b) of the Act) is stated in the standard directions sent out by the Tribunal and confirmed in the Tribunal’s letter of 13 August 2004. I also note that on 4 August 2004 Mr Frewen, on behalf of the native title party, acknowledged the imminent compliance date for this objection application, but failed to comply.
I also wish to observe that WO03/769 was lodged on 9 September 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 this objection. The consequences of a failure to do this have been pointed out to Mr Frewen in previous objection matters and the Widji native title party is on notice of the evidence required under s 237 of the Native Title Act 1993 (Cth) if an objection is to be upheld.

Decision

Being satisfied that the applicant (native title party) in application WO03/769 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
1 September 2004