Leonne Velickovic on behalf of Widji People/Western Australia/ Peter Romeo Gianni and Kim James Harris

[2004] NNTTA 100

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/ Peter Romeo Gianni and Kim James Harris, [2004] NNTTA 100 (4 November 2004)

Application Nos:       WO03/600     WO04/11

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

-and-

IN THE MATTER of Inquiries 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-

Peter Romeo Gianni and Kim James Harris (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Dateismissal:  4 November 2004
Date of Reasons:             4 November 2004

Catchwords:  Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – failure within a reasonable time to proceed with objection applications – failure to comply with Directions – objection applications 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

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the

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

Representative of the

grantee party:                Mr Mike Lewis, Rubysands Pty Ltd

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. 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 prospecting licence P27/1518 to Peter Romeo Gianni and Kim James Harris (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 25 February 2004, the Government party also gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P24/3878 to Peter Romeo Gianni and Kim James Harris (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

3. Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged expedited procedure objection applications with the Tribunal on 25 July 2003 in relation to P27/1518 (WO03/600), and on 20 February 2004 with respect to P24/3878 (WO04/11). The grantee party’s prospecting licences will be referred to henceforth as the ‘proposed licences’.

Relevant Facts

1. The area, location, and percentage to which the proposed licences are overlapped by the registered native title claim are as follows:

   ·     P27/1518 – 120.94 hectares, 28 kilometres north-easterly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap

   ·     P24/3878 – 41.13 hectares, 40 kilometres northerly of Kalgoorlie in Kalgoorlie-Boulder City, 100% overlap

2. With respect to WO03/600, 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 19 August 2003. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 29 March 2004. Directions in the same form were set for WO04/11 on 2 March 2004, requiring native title party compliance on or before 18 October 2004. The Directions for each of these matters 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.

3. The Tribunal convened an adjourned Status Conference for WO03/600 on 10 March 2004, at which the time the native title party representative, Mr Jerome Frewen, requested an amendment to Directions on the basis that negotiations were underway but recent contact with the grantee party representative had not been possible.  At a further adjourned Status Conference on 24 March 2004 the grantee party confirmed that negotiations were continuing and requested an amendment to bring Directions for WO03/600 into line with those for WO04/11.  All parties agreed to this request and accordingly I amended Directions for WO03/600 to require native title party compliance by 18 October 2004.  Parties were advised in writing of this amendment on 8 April 2004.

4. The Government party complied with Directions initially set for WO03/600 on 12 March 2004 and for WO04/11 on 30 September 2004.

5. During adjourned Status Conferences on 17 June 2004 and 10 August 2004, at which the native title party was not represented, the grantee party advised it wished to proceed to Inquiry on the basis that specific terms in the agreement were not mutually acceptable.  The Tribunal advised Mr Frewen of the grantee’s position in writing on 13 August 2004 and again during an adjourned Status Conference on 17 August 2004, at which time Mr Frewen was reminded of the due date for native title party compliance.  A further reminder of that date was forwarded in writing on 20 September 2004.

6. On 28 September 2004, the Tribunal wrote to the native title party and all other parties pointing out that the consequences of non-compliance with Directions may be dismissal of the objection under s 148(b) of the Act. No response was received by the Tribunal from the native title party addressing the issues raised in this correspondence.

7. At the Listing Hearing I convened on 4 November 2004 there had still been no compliance by the native title party and the grantee party representative, Mr Mike Lewis, submitted that the applications should be dismissed pursuant to s 148(b) of the Act. This request was reiterated by the Government party. Mr Frewen was invited to make submissions on behalf of the native title party in response to the grantee party representative’s submission but declined to do so.

1. Since May 2004, I have 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). In that matter I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13]) on the use of the power to dismiss an objection application under s 148(b) of the Act for failure to comply with the Tribunal’s directions. One of the factors to be taken into account is the previous conduct of the objector, such as previous failures to comply with the Tribunal’s directions. Based on the Tribunal’s experience in this and previous matters I have considered involving the Widji native title party, I have concluded that it has become their practice not to comply with the Tribunal’s directions. It has 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 have, in all matters, failed to comply with the Tribunal’s directions.

2. In this matter I 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 despite having been informed of the possible consequences of a failure to comply. 

3. The objection application with respect to WO03/300 was lodged on 25 July 2003, which is over fifteen months ago and in respect of WO04/11 in February 2004. Each of these matters have, therefore, been in the system for some time and one would have expected some steps to have been taken by the native title party to provide an evidentiary basis for their objections 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 these objections. From previous matters Mr Frewen and the Widji native title party have been placed on notice of the evidence required under s 237 of the Native Title Act 1993 (Cth) if an objection is to be upheld but have failed to provide it.

Decision

1. Being satisfied that the applicant (native title party) failed within a reasonable time to proceed with its expedited procedure objection applications and to comply with directions of the Tribunal, objection applications WO03/600 and WO04/11 are dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
4 November 2004