Leonne Velickovic on behalf of Widji People/Western Australia/Murchison Resources Pty Ltd
[2004] NNTTA 49
•21 June 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Murchison Resources Pty Ltd, [2004] NNTTA 49 (21 June 2004)
Application No: WO03/811
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-
Murchison Resources Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal:Hon CJ Sumner, Deputy President
Place:Perth
Date of dismissal: 3 June 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 application dismissed.
Legislation:Native Title Act 1993 (Cth) s 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 Scott Wilson, Murchison Resources Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On the 24 September 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P24/3850, P24/3851, P24/3852 and P24/3853 (‘the proposed licences’) to Murchison Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 30 September 2003, Leonne Velickovic on behalf of Widji People (‘the native title party’) made an expedited procedure objection application to the Tribunal.
Relevant Facts
The registered claim of the native title party covers 100% of the area of each of the proposed licences:
·P24/3850 concerns an area of some 194.04 hectares, 45 kilometres north-west of Kalgoorlie;
·P24/3851 concerns an area of some 193.15 hectares and is located 44 kilometres north-west of Kalgoorlie;
·P24/3852 concerns an area of some 199.44 hectares, 43 kilometres north-west of Kalgoorlie; and
·P24/3853 concerns an area of some 80.3 hectares and is located 42 kilometres north-west of Kalgoorlie.
On 20 October 2003, the Tribunal made Directions for all parties to produce contentions and evidence for the conduct of the inquiry. The Direction in respect of the native title party was as follows:
‘(3)On or before 24 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.’
Initial negotiations in order to reach agreement between parties proved unsuccessful and during the Status Conference of 14 April 2004, at which the native title party was unrepresented, the grantee party advised that further negotiations would be fruitless. The native title party representative was advised in writing on the same date that the matter would proceed to Inquiry and reminded in the same correspondence that compliance was due by 24 May 2004.
The Government party complied with Directions by 18 May 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 several other objection applications lodged by the native title party and was not accompanied by affidavit or documentary evidence. Correspondence in the following terms was included:
‘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.’
A Listing Hearing was convened by me on 3 June 2004, at which the native title party was again not represented despite written advice from the Tribunal of the hearing on 1 June 2004, verbal confirmation of attendance by the native title party representative on 2 June 2004, and repeated attempts to contact him by telephone on 3 June 2004. I am satisfied that Mr Frewen had adequate notice of the Listing Hearing but declined to attend. The grantee party was represented and sought to have the objection application dismissed for non-compliance and the Government party concurred with this view.
Conclusion
It is my view that the native title party has failed to comply with Directions despite an extensive list of evidence intended to be adduced by it, which was submitted at paragraph [8] of the Form 4 objection application, and the stated desire of the grantee party to progress the matter to Inquiry on 14 April 2004. The Statement of Contentions provided by the representative for the native title party on 17 May 2004 does not provide the information required by the Directions (particularly Direction 3(b) and 3(c)) and no explanation has been given as to why supporting evidence was not gathered prior to Mr Velickovic’s unavailability. On 28 May 2004 I conducted a Listing Hearing in relation to a number of Widji objection matters during which Mr Frewen was present and made submissions in support of further time to comply with the Tribunal’s directions based on Mr Velickovic’s imprisonment. I did not accept the submissions and dismissed the objection applications (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). I also had regard to the decision in Leonne Velickovic on behalf of Widji People/Western Australia/Mat Mining Pty Ltd, NNTT WO03/767, [2004] NNTTA 35 (20 May 2004) where Deputy President Franklyn dismissed a Widji objection in similar circumstances. The present matter is not appreciably different from the matters heard on 28 May 2004 and the general reasons given for dismissal of those matters are applicable here.
Decision
Being satisfied that the applicant (native title party) in this matter 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
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