Leonne Velickovic on behalf of Widji People/Western Australia/Natalie Marie Clements - [2004] NNTTA 71

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Natalie Marie Clements, [2004] NNTTA 71 (27 July 2004)

Application No: WO03/562

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-

Natalie Marie Clements (Grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon E.M. Franklyn QC, Deputy President
Place:  Perth
Date of dismissal:     19 July 2004
Date of reasons:       27 July 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)

Representative of the

Native Title party: Ms YvonneBrownley and Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

Grantee party: Mr Shaun Clements

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 16 May 2003 the State of Western Australia (the Government party) gave notice under s 29 of the Native Title Act (Cth) (‘the Act’) of its intention to grant prospecting licences P24/3805 and P24/3806 (the tenements) to Natalie Marie Clements (the Grantee) and included in the notice a statement that it considered the grants to each attract the expedited procedure under the Act.
On 15 July 2003 Leonne Velickovic on behalf of the Widji People lodged an expedited procedure objection in respect of the grant of the said tenements. The said objection is signed “Jerome Frewen for Widji People” and contains an extensive outline of the type of evidence “that the objector will produce to the National Native Title Tribunal”. The objection names “Yvonne Brownley, Desert Management Pty Ltd, Box 601 Applecross WA 6153, Tel 0407 084 550, Email [email protected] as the representative of the objector”. It is not in dispute that Mr Jerome Frewen is a director of Desert Management Pty Ltd.

Relevant Facts

P24/3805 comprises 189.04ha and is 100% overlapped by the land the subject of the Widji registered Native Title claim (NNTT No. WC98/27). P24/3806 comprises 188.70 ha of which 18.47 ha (9.3%) is overlapped by the said native title claim.
On 11 August 2003 the Tribunal issued Directions requiring the respective parties to produce to it and serve on the other parties contentions, documents and evidence relied upon for the purpose of the inquiry in respect of each tenement. They required compliance by the Government party on or before 12 January 2004, by the Native Title party on or before 4 February 2004 and by the Grantee on or before 11 February 2004. The directions in respect of the Native Title party were as follows:
‘(3)On or before 4 February 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 are 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 Directions also provided for liberty to apply to vary the directions and, by paragraph 7, provided:

(7)        Parties are asked to note that:
·       if the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b) Native Title Act 1993 (as amended)); and
·       a copy of any correspondence, e-mail or document provided to the Tribunal by any party must be provided simultaneously to every other party, unless there are any issues of confidentiality which arise.
·       As far as practicable parties are to provide evidence in documentary form (see paragraph 3.16 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal 8 February 2002 and in particular para 3.16.4).

The Grantee and the Native Title party through Mr Jerome Frewen, commenced negotiations in August 2003 following a Preliminary conference convened by the Tribunal on 19 August 2003. A Status conference was held on 17 December 2003 at which it was reported that the parties were still negotiating. The conference was adjourned to a listing hearing on 19 February 2004.
The State duly complied with the relevant directions on 1 and 7 January 2004.
On 19 February 2004 the Grantee requested that the compliance dates set for the directions be extended for 4 weeks because of pre existing ground disturbance on the tenements which he wanted to have documented. Mr Frewen, on behalf of the Native Title party, requested instead an extension of 6 weeks. The parties agreed on an extension of time for compliance by the Native Title party to 2 April 2004 and by the Grantee to 9 April 2004. The hearing was adjourned to 25 March 2004.
At the hearing on 25 March 2004 the Grantee’s representative advised that the grantee wished the matter to proceed to inquiry and that the Tribunal determine the objection application. The convenor of that hearing reminded Mr Frewen (for the Native Title party) that its compliance with directions was due on or before 2 April 2004. Mr Frewen requested a 4 week extension of time for compliance to which the Grantee agreed. Deputy President the Hon C J Sumner approved an extension of time as follows: Compliance by the NTP on or before 3 May 2004 and by the Grantee on or before 10 May 2004, a listing hearing to be held on 20 May 2004.
On 4 May 2004 the Tribunal case manager reminded Mr Frewen by email that compliance by the Native Title party was due on 3 May 2004 and that the matter was going into inquiry, a listing hearing being scheduled for 20 May 2004.
On 7 May 2004 I was appointed as the member to constitute the Tribunal for the purpose of the inquiry.
On 17 May the Native Title party lodged with the Tribunal a “Submission” signed “Jerome Frewen for Leone Velickovic, Desert Management Pty Ltd”. The submission did not comply with the directions relating to contentions made on 11 August 2003 and was not accompanied by any statement of evidence or other documentary evidence. Its thrust was that as the Grantee had refused to enter into the Widji Alternative Heritage Agreement (with or without amendments) the tenement applications “do not qualify for the expedited procedure”. The submission was accompanied by a letter from Mr Frewen which stated as follows:
“Attached are Statements of Contentions in relation to a number of matters, for which statements were due, or are due.
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”.
At the adjourned listing hearing convened on 20 May 2004 by the Tribunal’s acting Senior Case Manager, Mr Frewen advised that he had not yet circulated the said submissions to the other parties. The Convenor said she would forward copies to the other parties. Mr Frewen repeated his request for a 4-6 week further extension of time to comply with the directions on the grounds that the Native Title party was not available. The Grantee agreed to this request. As to the request for a hearing on country, the State expressed a preference for a hearing on the papers and the Grantee wished to take advice on the question. The hearing was adjourned to 27 May 2004.
At the hearing on 27 May 2004 convened by the Acting Senior Case Manager, the Grantee, by his representative, agreed to the Native Title party’s request for a 6 weeks adjournment and advised that she would rely on the States contentions. There was discussion as to what is involved in a hearing “on country” to some of which Mr Frewen took exception and left the conference. The Grantee indicated a preference for a hearing on the papers. The matter was adjourned to 22 July 2004.
By letter dated 1 June 2004, the Grantee’s representative advised that he was informed that Mr Velickovic could be available from 7 July 2004 onward and that, had he known that earlier, the grantee would not have agreed, on 27 May, to the 6 week extension of time for compliance by the Native Title party. He asked that the matter be re-listed. It was re-listed for 10 June 2004, Mr Frewen being so advised by email on 1 June 2004.
The hearing on 10 June 2004 was conducted by the Acting Senior Case Manager. There was no attendance by Mr Frewen on behalf of the Native Title party and, for the purposes of the hearing, the convenor attempted to contact Mr Frewen on both his mobile and land line telephone. The mobile number is the same as that given on the objection application for Yvonne Brownley, the Native Title party’s stated representative. The calls were unanswered. The hearing was adjourned to 24 June 2004.
By letter dated 23 June 2004 addressed to “Coordinator Widji People, PO Box 601, Applecross WA 6153” (the Native Title party’s address for service and the address of Yvonne Brownley its stated representative and also of Desert Management Pty Ltd, as given on the Objection application), the Acting Senior Case Manager gave notice to the Native Title party that the objection was proceeding to inquiry and that a hearing was listed for 28 June 2004 at 12.00pm and requested advice as to whether it would be represented by Mrs Brownley. No reply was received. Attempts were made to contact the Widji representative, Mrs Brownley, by telephone on 25, 26 and 27 June. The calls on 25 and 26 were unanswered, but that of the 27 was met with a voice mail answering service and a message was left advising again of the hearing listed for 28 June 2004 and requesting confirmation of attendance on behalf of the Native Title party. No response was received. On the morning of 28 June, an email was sent to the representatives of all parties reminding them that the hearing was listed for 12.00pm that day. As there was no response from or on behalf of the Native Title party, the matter was adjourned to 14 July 2004 at 11.00pm. That listing was confirmed in writing on 1 July 2004 to all parties, including to Mr Frewen, Mrs Brownley and the “Coordinator Widji” at the address provided for them in the objection application. The parties were asked to confirm their availability. There was no reply from or on behalf of the Native Title party. Telephone calls to Mrs Brownley’s telephone numbers on 5 July 2004 were unanswered. On 13 July 2004 all parties (including Mr Frewen, Mrs Brownley and the “Coordinator Widji people”) were reminded by email of the hearing listed for 10.00am on the 14 July 2004. An email was received from Mr Frewen on 13 July 2004 in reply, stating: “I am unavailable. I am travelling to Karratha. Yvonne [Brownley] does not handle this matter.”
The six week extension of time for compliance by the Native Title party had expired on 8 July 2004.
By letter dated 15 July 2004 addressed to Mr Frewen, with copies to Yvonne Brownley, the Coordinator Widji, the Tribunal advised that in view of Mr Frewen’s inability to attend on 14 July 2004, the matter would instead be brought on on 19 July at 11.00am. The letter pointed out that the directions had not been complied with by the Native Title party and that at the hearing on 19 July 2004, I would entertain submissions as to what (if any) further directions should be made for the conduct of the inquiry or whether the objection application should be dismissed pursuant to s 148(b) of the Act. The letter advised that if Mr Frewen could not attend he should arrange alternative representation. The parties were again reminded of the hearing by email on 19 July at 9.00am. There was no response from the Native Title party or anyone on its behalf to the letter of 15 July 2004 nor to the email of 19 July 2004. There was no appearance for it at the hearing. I was (and am) satisfied that the NTP failed within a reasonable time to proceed with its expedited procedure objection application and to comply with directions of the Tribunal. Consequently at the hearing on 19 July 2004, I dismissed the objection application pursuant to s 148(b) of the Act.
It is now more that 12 months since the Native Title party lodged its objection application. It was aware on 25 March that the grantee wished the application to proceed to inquiry and determination by the Tribunal. There was no attempt to comply with the directions on or before 3 May 2004, the extended date allowed on the 25 March at Mr Frewen’s request. The “submission” lodged on 17 May 2003 by the Native Title party did not comply with the directions. I do not accept that the fact Mr Velickovic’s imprisonment prevented the Native Title party from providing contentions or evidence as required by the directions in respect of the issues raised by s 237 of the Act relied on by the Native Title party. The objection is lodged on behalf of the Widji people and I do not accept that there were or are no other members of the group who could provide the evidence required by the directions. The extensions of time were however agreed by the Grantee to 8 July 2004. The listing of the proceedings and of the Native Title party’s conduct as set out in the preceding paragraphs (in particular paras [14]-[17] makes clear in my view, that the Native Title party has failed within a reasonable time to proceed with the expedited procedure objection application and to comply with the aforesaid directions of the Tribunal.

Decision

The expedited procedure objection application (WO03/562) lodged by Leonne Velickovic in respect of the proposed grant to Natalie Marie Clements of prospecting licences P24/3805 and P24/3806 is dismissed pursuant of s 148(b) of the Act.

Hon E.M. Franklyn QC
Deputy President
27 July 2004