Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd - [2005] NNTTA 8

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd, [2005] NNTTA 8 (10 March 2005)

Application No: WO03/707

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)

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The State of Western Australia (Government party)

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Rocky Reef Mining Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            4 March 2005
Date of reasons:              10 March 2005

Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – proceedings of the Tribunal to be public – established procedures for confidentiality (suppression) orders – 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), 154, 155, 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
Leonne Velickovic on behalf of Widji People/Western Australia/International Goldfields Ltd, NNTT WO04/188, [2005] NNTTA, 7 (8 March 2005), 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 Mr David Saggers for Mr Fred Saunders and Rocky Reef Mining

grantee party: Pty Ltd

Representative of the

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 27 August 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P27/1519 (‘the proposed licence’) to Rocky Reef Mining Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).
On 25 August 2003, Leonne Velickovic on behalf of Widji People (WC98/27) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence. The Widji native title claim has been entered on the Register of Native Title Claims since 15 June 1998.

Relevant Facts

The proposed licence is located 51 kilometres north easterly of Kalgoorlie, in the City of Kalgoorlie Boulder. The area of the proposed licence is 31.44 hectares and there is 100% overlap by the Widji registered native title claim.
The Tribunal made Directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 23 April 2004. The Directions 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.
Mr Saunders, for the grantee party, was not available or in contact range to attend preliminary conferences convened between 30 September 2003 and 13 April 2004. As a consequence this matter was adjourned to the non-participating grantee list. Mr Saunders did not attend a conference convened on 2 July 2004 at which time Directions were vacated.
On 11 November 2004 the grantee party did attend a further adjourned Preliminary Conference at which time Mr Saunders advised that he wished to progress with the matter and confirmed he was in possession of a draft Widji alternative heritage agreement (‘Widji AHA’). I was satisfied that the grantee party intended to commence participating in the process and returned the matter to the ordinary list.
The Tribunal convened a further adjourned Preliminary Conference on 10 December 2004 at which time Mr David Saggers, now representing the grantee party, advised that Mr Saunders did not wish to continue negotiations on the basis of the Widji AHA and instead intended to execute a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region. Mr Jerome Frewen, representing the native title party advised that the RSHA was not acceptable to the Widji People and with the prospect of agreement doubtful the objection application was referred to inquiry. Directions were reset with the consent of all parties taking into account Mr Frewen’s submission that Widji law business would preclude compliance before mid February 2005. Native title party compliance was therefore required on or before 18 February 2005.
The Government party complied with the amended Directions on 8 February 2005. On 16 February the grantee party advised of its intention to rely on the Government party’s documents.
On 17 February 2005 Mr Frewen was reminded via email correspondence that compliance for the native title party was imminent. A second reminder on 28 February 2005 was sent advising of the Listing Hearing date and the possible consequences of non-compliance.
On 4 March 2005, by which date no native title party submissions had been received, I convened a Listing Hearing. The Government party made application to dismiss the objection application under Section 148(b) on the basis of non-compliance by the native title party. The grantee party concurred. In response, Mr Frewen gave reasons why compliance had been delayed which related to his client’s concerns that sensitive cultural information might be made public through this process.
Mr Frewen’s concerns were first drawn to the Tribunal’s attention on 22 February 2005 in relation to another objection (WO04/188). The concerns arose following another Tribunal objection matter recently determined where a copy of the reasons for determination, including details of an affidavit, was provided by a Tribunal officer to another native title party. Mr Frewen said his clients now sought assurances from the Tribunal that documents filed would remain confidential. According to him, without this assurance, identifying what information was confidential would require time consuming and involved consultation with the claim group. Mr Frewen’s clients asked that he not proceed with filing documents until this issue had been resolved. For these reasons Mr Frewen sought an extension of the time within which the native title party was to comply.
I do not accept Mr Frewen’s reasons for non-compliance with directions and his request for a further extension of time. Mr Frewen has been aware of the obligation to comply since 10 December 2004 whereas the issue relating to confidentiality was only raised on 22 February 2005. Mr Frewen has had ample time to prepare his contentions and evidence. Regrettably I am forced to the conclusion that raising the confidentiality issue at this stage was in an attempt to gain more time in the context where the Widji native title party have a long history of ignoring the Tribunal’s directions. I also express my concern that a person who has represented native title parties for many years has not until recently been aware of the law and practice on this issue. The law is clear and well established in relation to the management of confidential information and public hearings. Section 154(1) of the Act provides that hearings of the Tribunal in right to negotiate inquiries are to be held in public unless a direction is made by the Tribunal for a private hearing (s 154(3)). In making such a direction due regard must be had to cultural and customary concerns of Aboriginal peoples.
Section 155 of the Act permits the Tribunal to direct that evidence or documents must not be disclosed except in such a manner and to such persons as the Tribunal specifies. The current directions are in the form of standard directions which have been issued by the Tribunal since 1995 and provide for confidential information to be submitted to the Tribunal in a separate sealed envelope, with details of the documents supplied and the manner in which it is proposed that the Tribunal can use the information. The Tribunal (and Federal Court) have enunciated principles applicable to the making of confidentiality (or suppression) orders (see cases cited in para 7.5: ‘Receipt of restricted evidence’, Guide to future act decision made under the Commonwealth right to negotiate scheme, NNTT, 31 December 2003 (Web site reference: and WO04/188 Leonne Velickovic on behalf of Widji People/Western Australia/International Goldfields Ltd, [2005] NNTTA 7 (8 March 2005) – the matter in which Mr Frewen first raised this issue).
In the present matter, no requests for confidentiality orders were made by any of the parties, nor have any documents been submitted in accordance with the confidential information procedure. As Directions were amended in accordance with Mr Frewen’s request that native title party compliance not be required before mid February the reasons given by him do not provide the basis on which a further extension of time to comply should be granted.
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 involving the Widji native title party, I have concluded that it is common (but not universal) practice for them 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 most cases failed to comply, or have only partially complied, with the Tribunal’s Directions. While in more recent times there have been greater attempts to comply, the fact remains that in many cases the Widji native title party lodge objections and then fail to prosecute them properly and in accordance with the Tribunal’s directions.
It is now clear that a number of grantee parties wish to proceed on the basis of the RSHA and are not prepared to accept the Widji AHA. In these cases the Widji native title party will be on notice at the time they lodge expedited procedure objections that agreement is unlikely and an inquiry will be necessary. They should take early steps to ensure that evidence is available to enable the Tribunal to properly consider in a timely manner whether or not the expedited procedure is attracted.
This matter has been in inquiry since the objection document was lodged on 25 August 2003. Although there was delay because of the grantee party’s non-participation the native title party was aware from at least November 2004 that the grantee party wished to proceed with obtaining the grant of the tenement. I find that the native title party has failed within a reasonable time to proceed with its objection 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.

Decision

Being satisfied that the applicant (native title party) 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
10 March 2005