Leonne Velickovic on behalf of Widji People/Western Australia/Metex Resources Ltd - [2004] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Metex Resources Ltd, [2004] NNTTA 51 (21 June 2004)

Application No: WO03/596

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-

Metex 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 exploration 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/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 Kevin Connell, Austwide Mining Title Management Pty Ltd.

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 30 July 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E27/229 to Metex 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 licence with the Tribunal on 25 July 2003.

Relevant Facts

The area, location, and percentage to which the grantee party’s exploration licence is overlapped by the registered native title claim is as follows:
· E27/229 – 56.25km², 50 km north of Kalgoorlie, 60.1% overlap
The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry on 19 August 2003. The Direction in respect of the native title party was as follows:
‘(3)On or before 29 March 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.’
The Tribunal convened a Status Conference on 3 March 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.
On 2 April 2004 a Directions Hearing to deal with a number of objection applications involving the Widji People and consider submissions made by Mr Frewen in relation to the Standard Heritage Agreement was convened by me and new Directions were issued requiring the native title party to comply on or before 7 May 2004. Mr Frewen agreed to this timetable.
The Government party complied with Directions initially set for this matter on 12 March 2004 and amended statements of contention were submitted by the Government party on 22 April 2004 in response to the 2 April 2004 Directions.
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 for which Directions had been re-made on 2 April 2004. The submission was not accompanied by affidavit or documentary evidence. Correspondence in the following terms was included reiterating a request, made by Mr Frewen on 11 May 2004, for further time to comply:
‘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.’
Statements of Contention were been lodged on behalf of the grantee party on 13 May 2004.
At a Listing Hearing convened by Ms Murphy, the Tribunal’s Acting Senior Caseflow Manager, on 21 May 2004, Mr Jerome Frewen reiterated his written request of 17 May 2004. The grantee party was initially supportive of extending the native title party’s time to comply for a short period, but not the full 4-6 weeks requested. On this basis, the Government party was also prepared to support a short Directions amendment request. However, the native title party representative was not prepared to agree to an amendment of less than 4-6 weeks. Given this, the Government party requested that the matter be heard before me. Both the grantee and Government parties were opposed to an ‘on country’ hearing, preferring that the matter proceed to inquiry on the papers. The Government party 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 has 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 WO03/596 was lodged on 25 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 WO03/596 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