Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd; Gregory John Keeley; Westex Resources Pty Ltd
[2005] NNTTA 98
•22 December 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd; Gregory John Keeley; Westex Resources Pty Ltd, [2005] NNTTA 98 (22 December 2005)
Application Nos: WO05/185 WO05/367 WO05/376
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-
Rocky Reef Mining Pty Ltd, Gregory John Keeley (grantee party)
(WO05/185 & WO05/397)
- and -
Westex Resources Pty Ltd (grantee party) (WO05/376)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 22 December 2005
Catchwords: Native title – future act – proposed grant of exploration licence – proposed grant of prospecting licence - proposed grant of amalgamation into an exploration licence - expedited procedure objection applications – failure to comply with directions – objection applications dismissed.
Legislation:Native Title Act 1993 (Cth) s 148(b)
Cases:Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner
Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner
Leonne Velickovic on behalf of Widji People/Western Australia/Kevin Michael Pavlinovich, NNTT WO05/36, [2005] NNTTA 89 (2 December 2005), Hon C J Sumner
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
Representative of the
grantee party: Mr Steve Millward, Millward Surveys Pty Ltd
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 4 May 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E26/100 to Gregory John Keeley and 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.
On 9 May 2005, Leonne Velickovic on behalf of Widji People (WC98/27, registered from 15 June 1998) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to E26/100 (WO05/185).
On 13 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P26/3109 to Gregory John Keeley and Rocky Reef Mining Pty Ltd and amalgamation application AM-E26/95 to Westex Resources Pty Ltd and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On 18 July 2005, Leonne Velickovic on behalf of Widji People lodged expedited procedure objection applications with the Tribunal in relation to P26/3109 (WO05/367) and AM-E26/95 (WO05/376). Henceforth all three licence applications will be referred to as the proposed licences and the tenement applicants as the grantee parties. The Tribunal notes that Gregory John Keeley is also associated with Westex Resources Pty Ltd.
The area, location and extent to which the proposed licences are overlapped by the native title party are as follows:
E26/100 comprises an area of 23.48 square kilometres, 24 kilometres easterly of Kambalda in the City of Kalgoorlie-Boulder – 100% overlap;
P26/3109 comprises an area of 6.65 hectares, 25 kilometres easterly of Kambalda in the City of Kalgoorlie-Boulder – 100% overlap; and
AM-E26/95 comprises an area of 105.58 hectares, 14 kilometres north-easterly of Kambalda in the City of Kalgoorlie-Boulder – 100% overlap.
In the case of P26/3109 and AM-E26/95 the registered native title claim of the Central West Goldfields People (WC99/29, registered 4 October 1999) also overlaps the proposed licences by 100%. E26/100 is overlapped 81.78% by the Central West Goldfields People’s claim, and is also subject to a 6.17% overlap by the Ngadju People and a 12.05% overlap by the Central East Goldfields People. Each of these native title claimant groups is registered and also has the status of native title party but none have lodged an objection in relation to these proposed licences.
Relevant Facts
In the case of WO05/185, the Tribunal made directions on 23 May 2005 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 affidavits on or before 2 January 2006. 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. Similar directions were made in relation to WO05/367 and WO03/376 on 1 August 2005 requiring native title party compliance by 13 March 2006.
In relation to WO05/185, a preliminary conference was convened on 21 June 2005, at which the native title party was unrepresented. The representative for the grantee party, Mr Steve Millward, advised that the grantee had executed a Regional Standard Heritage Agreement (‘RSHA”) and was not prepared to enter into the alternative agreement preferred by Widji because of the up front payments demanded by the native title party representative, Mr Jerome Frewen. On that basis Mr Millward requested that the objection application proceed to Inquiry. Mr Frewen was advised of the conference outcomes by email on 22 June 2005. At the adjourned preliminary conference held on 10 August 2005 some confusion resulted regarding whether a RSHA had in fact been signed with an overlapping native title party (as per State policy) and this conference was adjourned until the facts of the matter could be clarified.
A further preliminary conference in relation to all three objections was convened on 16 August 2005 at which the native title party was again unrepresented. Mr Millward confirmed that the grantee parties wished to proceed to inquiry because a RSHA had been executed with an overlapping claim group. This position was reiterated during the further adjourned preliminary conference of 23 August 2005 at which time Mr Millward requested that the matters proceed together. It was proposed that dates for compliance with initial directions in all three matters be brought forward in accordance with Tribunal policy that where there is no possibility of agreement the timeframes for compliance will be shortened to expedite the objection inquiry. Mr Frewen was advised of the proposed dates for compliance following the conference and responded by email noting that the dates coincided with Widji Law business and requested that the matters be adjourned to March 2006. The grantee and Government parties did not agree to this proposal and accordingly on 4 October 2005 I approved an amendment to directions requiring compliance by the native title party on or before 12 December 2005, four weeks after the objection closing date for P26/1390 and AM-E26/95. All parties were advised of the amended dates for compliance by email.
The Government party has complied with directions and I infer that the grantee party will rely on those submissions. No submissions from the native title party have been forthcoming to date.
In response to a further request from Mr Frewen that all Widji matters be adjourned and directions amended to permit compliance in late March 2006 because of Law business, on 3 December 2005 Mr Millward advised by email that the grantees would not agree to further time and requested that the objections be dismissed. On 20 December 2005 the Tribunal received email correspondence from Mr Frewen, advising that he would be on annual leave from that day until 21 January 2006, and that all arbitral hearings in relation to Widji should be adjourned until after the Law business period in February 2006. The Government and grantee parties opposed this adjournment request and accordingly I directed that the listing hearing proceed as scheduled on the basis that the native title party had ample notice of the date and to make alternative arrangements for representation. No response was received from Mr Frewen.
On 22 December 2005 I convened a listing hearing at which the Government party supported by the grantee party made application to dismiss the objection pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. Mr Frewen did not attend the hearing and the native title party was not otherwise represented.
It has been clear to the native title party since at least 22 June 2005 in the case of WO05/185 and 23 August 2005 in the case of WO05/367 and WO05/376 that there was no prospect of a mutually agreed outcome. I find that the native title party has failed to comply with the Tribunal’s directions having submitted no statement of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply. The reasons provided in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner (at [12]-[13]) are applicable in this matter. I note that the native title party habitually fails to comply with the Tribunal’s directions. The Tribunal is prepared to consider applications for more time to comply in appropriate cases including for reasons that native title claimants are not readily available because of Law business. However, as in Leonne Velickovic on behalf of Widji People/Western Australia/Kevin Michael Pavlinovich, NNTT WO05/36, [2005] NNTTA 89 (2 December 2005), I have rejected Mr Frewen’s request for additional time because I am satisfied that even if granted compliance is highly unlikely based on the native title party’s previous non-compliant behaviour. An important factor in considering applications to dismiss for non-compliance with directions is that expedited procedure objections are, as the term implies, supposed to be dealt with as speedily as possible (Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Wolsog Pty Ltd, NNTT WO05/5, [2005] NNTTA 59 (23 August 2005), Hon C J Sumner at [12]).
I also note for the record that the Government party has proposed an extra condition to be imposed on the grant of all proposed licences, requiring that the grantee party, if so requested by the Central West Goldfields People not more than ninety days after the grant of the proposed licences, shall within thirty days of the request execute a regional standard heritage agreement in favour of the Central West Goldfields People. A similar condition in favour of the Central East Goldfields People has also been proposed for E26/100. If acted upon, these conditions should assist to ensure that sites of particular significance to the Widji are protected.
Decision
Expedited procedure objection applications WO05/185, WO05/367 and WO05/376 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).
Hon C J Sumner
Deputy President
22 December 2005
0
3
0