Leonne Velickovic on behalf of Widji People/Western Australia/Rand Mining NL, Tribune Resources NL; Rand Exploration NL, Kevin Arthur Pownall and Steven Anthony Tomich
[2004] NNTTA 45
•21 June 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Rand Mining NL, Tribune Resources NL; Rand Exploration NL, Kevin Arthur Pownall and Steven Anthony Tomich, [2004] NNTTA 45 (21 June 2004)
Application Nos: WO03/569 and WO03/705
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-
Rand Mining NL, Tribune Resources NL (grantee party in WO03/569)
and
Rand Exploration NL, Kevin Arthur Pownall and Steven Anthony Tomich
(grantee party in WO03/705)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J 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 exploration licence and 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) 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; Consiton Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner
Representative of
native title party Mr Jerome Frewen, Desert Management Pty Ltd
Representative of
grantee party Mr Clive Miller, Tenement Administration Services
Representative of
Government party Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On the 16 July 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E15/669 to Rand Mining NL and Tribune Resources NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure. The licence concerns an area of some 14.73 km², 13 kilometres south-west of Kalgoorlie and is overlapped 100% by the registered claim by the native title party.
On 15 July 2003, Leonne Velickovic on behalf of Widji People (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to E15/669 (WO03/569).
On 27 August 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P26/2988 and P26/2989 to Rand Exploration NL, Kevin Arthur Pownall and Steven Anthony Tomich (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure. P26/2988 concerns an area of some 195.75 hectares, three kilometres south of Kalgoorlie. P26/2989 covers an area of 110.65 hectares and is located two kilometres south of Kalgoorlie. In both cases, the registered claim by the native title party covers 100% of the notice area.
On 25 August 2003, Leonne Velickovic on behalf of Widji People (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to P26/2988 and P26/2989 (WO03/705).
Relevant Facts
In relation to WO03/569, on 11 August 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 15 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.’
In relation to WO03/705, on 16 September 2003, the Tribunal made identical Directions requiring native title party compliance by 23 April 2004.
Negotiations between the native title party and grantee party took place in relation to both matters but no agreement on withdrawal of the objection was reached.
During the Status Conference held on 11 February 2004 the grantee party advised that it wished the matters to go directly to Inquiry. The native title party representative requested mediation assistance under s 150 of the Act with which the grantee party agreed.
In relation to WO03/569, the Government party complied with Directions by 5 March 2004 and in relation to WO03/705 by 7 April 2004.
At the Status Conferences of 31 March 2004, the native title party requested that Directions be amended to allow time for negotiations. As the grantee party was not represented it was not possible to obtain consent of the parties for a deferral of directions.
On 22 April 2004 the grantee party consented to an extension of time for compliance and reiterated his view that the matter should proceed to Inquiry following the breakdown of negotiations and the s 150 conference. I approved the amendment to Directions on 5 May 2004, native title party compliance now being required on or before 21 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 not accompanied by affidavit or documentary evidence but did include correspondence in the following terms:
‘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.’
The grantee party submitted a Statement of Contentions to the Tribunal on 28 May 2004 and submitted that sufficient information had been provided for the matter to be determined in Perth rather than ‘on country’.
A Listing Hearing was convened before me on 3 June 2004, at which Mr Jerome Frewen the representative for the native title party was not present. At the Directions Hearing on 22 April 2004 Mr Frewen was present and advised of the date of the Listing Hearing as 4 June 2004. On 1 June 2004, the Tribunal by email informed Mr Frewen that the date had been changed to 3 June 2004 which was followed up verbally on 2 June 2004 when Mr Frewen confirmed his attendance. Repeated attempts to contact Mr Frewen by telephone were made on 3 June 2004 to enable him to participate in the hearing as previously arranged. I am satisfied that Mr Frewen had adequate notice of the Listing Hearing but declined to attend. The grantee party and the Government party were present at the hearing and both applied for the objection application to be dismissed owing to non-compliance with the Tribunal’s directions.
Conclusion
It is my view that the native title party has failed within a reasonable time to proceed with the objections and failed to comply with Directions despite the stated desire of the grantee party to progress the matters to Inquiry as early as 11 February 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 Directions 3(b) and 3(c)) and no explanation has been given as to why supporting evidence was not gathered prior to the objector’s unavailability because of his imprisonment. 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 matters are 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 each of the applications WO03/569 and WO03/705 failed within a reasonable time to proceed with its expedited procedure objection applications and to comply with directions of the Tribunal, the objection applications are 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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