Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd & Gregory John Keeley - [2004] NNTTA 67

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd & Gregory John Keeley, [2004] NNTTA 67 (22 July 2004)

Application Nos: WO03/706

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-

Rocky Reef Mining Pty Ltd & Gregory John Keeley (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:     20 July 2004
Date of reasons:       22 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)
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 Steve Millward, Millward Surveys 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 licence P26/3108 to Rocky Reef Mining Pty Ltd & Gregory John Keeley (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged an expedited procedure objection application regarding the proposed licences with the Tribunal on 25 August 2003.

Relevant Facts

The area, location, and percentage to which the grantee party’s prospecting licence is overlapped by the registered native title claim is as follows:
· P26/3108 – 43.22ha, 26 km east of Kambalda, 100% overlap
The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to this matter on 16 September 2003. The Direction in respect of the native title party was as follows:
‘(3)On or before 23 April 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.’
The Tribunal convened an adjourned Preliminary Conference on 30 March 2004, at which time the grantee party advised it was considering requesting that this matter proceed to Inquiry as a negotiated settlement seemed unlikely. However, parties agreed to request an amendment to Directions to allow the grantee party more time to consider its position in light of a draft agreement supplied by the native title party and afford the native title party additional time to comply. This request was approved and re-set native title party compliance to 21 May 2004.
At a Status Conference on 13 April 2004, which the native title party representative Mr Jerome Frewen did not attend, the grantee party confirmed that negotiations had broken down and requested that the matter now proceed to inquiry. The matter was adjourned to a Listing Hearing on 24 June 2004, by which time compliance was due from all parties. This outcome was communicated to the native title party via email correspondence on the same day.
The Government party complied with amended Directions on 12 May 2004.
The Listing Hearing was convened on this matter by Ms Murphy, the Tribunal’s Acting Senior Caseflow Manager, on 24 June 2004. On 31 May 2004, the Tribunal was advised that Mr Frewen would be travelling overseas until early July 2004, and therefore would be unable to take instructions from his clients. The Listing Hearing was convened to ascertain whether the Government and grantee parties would be willing to consent to a further amendment to Directions to afford the native title party additional time to submit Statements of Contention with supporting affidavit or documentary evidence in consideration of Mr Frewen’s absence. The grantee and Government party representatives were opposed to any further amendment to Directions. However, both grantee and Government party representatives agreed to postpone further hearings on this matter until after Mr Frewen’s return from overseas.
The grantee party indicated at the Listing Hearing of 24 June 2004 intent to rely on the Statements of Contention lodged by the Government party.
On 2 July 2004, the Tribunal wrote to the native title party and all other parties in the following terms:
As at 1 July 2004 (by which time the native title party was due to comply with the directions), there has been no compliance by or on behalf of the native title party in this matter. As pointed out in the Directions, under Section 148 (b) of the Native Title Act 1993, where a native title party fails to comply with a direction, the Tribunal may dismiss the application.
On 31 May 2004 you advised the Tribunal that you would be unavailable to take instructions from your clients between 14 June 2004 and 12 July 2004, inclusive. In consideration of this, Deputy President Sumner will convene a further adjourned Listing Hearing of this matter on 20 July 2004 (at a time to be advised). During this hearing he will take submissions from the parties on what, if any, further Directions should be made for the conduct of the inquiry or whether the objection application should be dismissed pursuant to Section 148(b) of the Native Title Act 1993.
No response was received by the Tribunal from the native title party addressing the issues raised this correspondence.
At a Listing Hearing I convened on 20 July 2004, which Mr Frewen did not attend, the Government party submitted that the applications should be dismissed pursuant to s. 148(b) of the Act on the grounds that the native title party has failed to comply with the Tribunal’s directions. This submission was supported by the grantee party representative.
I have recently considered 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. In matters WO03/668 and WO03/764 for example, I dismissed the objections on the grounds that the native title party had failed within a reasonable time to proceed with its objections and to comply with the Tribunal’s directions (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 reaching this conclusion I also had regard to a decision to dismiss in similar circumstances in 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.
In this matter, in accordance with the reasons outlined in the above decisions, I also 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 material. The consequence of a failure to comply with Directions (i.e. the possibility of dismissal of the objection pursuant to s 148(b) of the Act) is stated in the standard directions sent out by the Tribunal. By letter dated 2 July 2004 the native title party’s attention was again drawn to the fact that it had not complied with the amended directions of 30 March 2004 and the possible consequences.
The only other matter I wish to observe is that WO03/706 was lodged on 25 August 2003, which is approaching 12 months ago. This matter has, therefore, been in the system for a considerable time and one would have expected some steps to have been taken by the native title party to provide an evidentiary basis for their objection 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 the objection.

Decision

Being satisfied that the applicant (native title party) in application WO03/706 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
22 July 2004