Leonne Velickovic on behalf of Widji People/Western Australia/South Kal Mines Pty Ltd, New Hampton Goldfields Ltd, Newcrest Mining Ltd

Case •

[2004] NNTTA 53

•

21 June 2004

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/South Kal Mines Pty Ltd, New Hampton Goldfields Ltd, Newcrest Mining Ltd, [2004] NNTTA 53 (21 June 2004)

Application Nos:       WO03/298; WO03/303; WO03/378; WO03/381; WO03/667;
  WO03/703; WO03/708

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-

South Kal Mines Pty Ltd (grantee party in WO03/381 and WO03/708)
and
New Hampton Goldfields Ltd (grantee party in WO03/298; WO03/303; WO03/378 and WO03/703)
and
Newcrest Mining Ltd (grantee party in WO03/667)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:     28 May 2004
Date of reasons:        21 June 2004

Catchwords:             Native title – future act – proposed grant of exploration 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) 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 John Clarke, Wanati Pty Ltd  

Representative of the      Ms Karen Dougall, State Solicitor’s Office
Government party:        Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

  1. On 26 March 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E26/96 and E15/698 to New Hampton Goldfields Ltd (‘the grantee party’/‘New Hampton Goldfields’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  2. On 9 April 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 P15/4373 and P15/4374 to New Hampton Goldfields and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  3. On 9 April 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E15/785 to South Kal Mines Pty Ltd (‘the grantee party’/‘South Kal Mines’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  4. On 13 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 P15/4415 to Newcrest Mining Ltd (‘the grantee party’/‘Newcrest’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  5. On 27 August 2003 the Government party gave notice under s 29 of the Act of its intention to grant prospecting licences P26/3176; P26/3177 and P26/3178 to South Kal Mines, and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  6. 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 P26/3022; P26/3023; P26/3024; P26/3025; P26/3029; P26/3038; P26/3039 and P26/3040 to New Hampton Goldfields and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  7. Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged expedited procedure objection applications regarding the proposed licences with the Tribunal according to the table below. 

Objection Application No. Closing Date Date Objection Application Lodged Grantee Party Tenement No
WO03/298 28/07/2003 24/03/2003 New Hampton Goldfields Ltd E26/96
WO03/303 28/07/2003 24/03/2003 New Hampton Goldfields Ltd E15/698
WO03/378 11/08/2003 07/04/2003 New Hampton Goldfields Ltd P15/4373; P15/4374
WO03/381 11/08/2003 07/04/2003 South Kal Mines Pty Ltd E15/785
WO03/667 15/12/2003 12/08/2003 Newcrest Mining Ltd P15/4415
WO03/703 29/12/2003 25/08/2003 New Hampton Goldfields Ltd

P26/3022; P26/3023;
P26/3024; P26/3025;
P26/3029; P26/3038; 

P26/3039;  P26/3040
WO03/708 29/12/2003 25/08/2003 South Kal Mines Pty Ltd P26/3176; P26/3177; P26/3178

  1. As noted above, these tenement applications have been lodged by a number of grantee parties.  However, on grant South Kal Mines Pty Ltd will take actual ownership of the prospecting license currently being sought by Newcrest Mining Ltd.   South Kal Mines Pty Ltd and New Hampton Goldfields Ltd are, in turn, subsidiaries of Harmony Gold Australia Ltd.  For these reasons, objection applications WO03/298, WO03/303, WO03/378, WO03/381, WO03/667, WO03/703 and WO03/708 have been heard together by the Tribunal since lodgement and will be dealt with together in this determination.

Relevant Facts

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

    ·WO03/298

    -    E26/96 – 8.81km2, 25km north-east of Kambalda, 100% overlap

    ·      WO03/303

    -    E15/698 – 5.86km2, 20km west of Kambalda, 100% overlap

    ·      WO03/378

    -    P15/4373 – 26.79ha, 26km south of Kalgoorlie, 100% overlap

    -    P15/4374 – 190.97ha, 27km south of Kalgoorlie, 100% overlap

    ·WO03/381

    -    E15/785 – 5.88km2, 26 km north-west of Kambalda, 100% overlap

·WO03/667

-    P15/4415 – 36.97ha, 26km south of Kalgoorlie, 100% overlap

·WO03/703

-    P26/3022 – 199.56ha, 10km north of Kambalda, 100% overlap

-    P26/3023 – 175.62ha, 12km north of Kambalda, 100% overlap

-    P26/3024 – 188.58ha, 13km north of Kambalda, 100% overlap

-    P26/3025 – 199.89ha, 13km north of Kambalda, 100% overlap

-    P26/3029 – 191.03ha, 25km south of Kalgoorlie, 100% overlap

-    P26/3038 – 183.85ha, 18km south-east of Kalgoorlie, 100% overlap

-    P26/3039 – 175.95ha, 19km south-east of Kalgoorlie, 100% overlap

-    P26/3040 – 191.93ha, 19km south-east of Kalgoorlie, 100% overlap

·WO03/708

-    P26/3176 – 181.09ha, 17km south of Kalgoorlie, 1006% overlap

-    P26/3177 - 161.83ha, 19km south of Kalgoorlie, 100% overlap

-    P26/3178 – 200ha, 15km south of Kalgoorlie, 100% overlap

  1. The Tribunal initially made Directions for the parties to provide contentions and evidence for the conduct of the inquiry in relation to WO03/298 on 10 April 2003.  The Direction in respect of the native title party was as follows:

    ‘(3)On or before 24 November 2003 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.’

  1. Identical Directions were issued in relation to the other objection applications, with corresponding native title party compliance dates, as follows:

    ·     WO03/303 Directions issued 10 April 2003 requiring native title party compliance by 24 November 2003;

    ·     WO03/378 Directions issued 30 April 2003 requiring native title party compliance by 8 December 2003;

    ·     WO03/381 Directions issued 30 April 2003 requiring native title party compliance by 8 December 2003;

    ·     WO03/667 Directions issued 26 August 2003 requiring native title party compliance by 14 April 2004;

    ·     WO03/703 Directions issued 15 September 2003 requiring native title party compliance by 23 April 2004; and

    ·     WO03/708 Directions issued 16 September 2003 requiring native title party compliance by 23 April 2004.

  2. On 1 October 2003 Directions in WO03/298 and WO03/303 were amended with the consent of all parties to allow further time for negotiations setting compliance by the native title party at 8 December 2004.  Subsequent amendments to Directions were made to all objection applications on 1 October and 16 November 2003 to bring compliance dates on all these matters into line.  The November 2003 amendment set native title party compliance for all matters at 23 April 2004.

  3. The Tribunal convened a Status Conference on 10 March 2004, at which time the grantee party advised it would prefer to proceed to Inquiry following the breakdown of negotiations.

  4. On 22 March 2004 the Tribunal received correspondence from Mr Frewen, native title party representative, requesting a general adjournment of outstanding Widji objections (including WO03/298, WO03/303, WO03/378, WO03/381, WO03/667, WO03/703 and WO03/708) for six weeks to obtain legal advice about the Government party’s new policy relating to the expedited procedure (the new policy is a reference to the use of a Standard Heritage Protection Agreement which if signed by the grantee party results in the Government party continuing to assert the expedited procedure in relation to the grant).

  1. On 2 April 2004, in order to deal with a number of objection applications involving the Widji People and consider Mr Frewen’s submissions a Directions Hearing was convened by me and new Directions were issued requiring the native title party to comply in these matters on or before 7 May 2004.  Mr Frewen agreed to this timetable.

  2. The Government party had complied with Directions initially set for these matters on 14 April 2004 and amended statements of contention were submitted by the Government party on 22 April 2004 in response to the 2 April Directions.

  3. 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 made in a form common to a number of other objection applications lodged by the native title party for which Directions were re-made on 2 April 2004.  The submission was not accompanied by affidavit or documentary evidence.  Correspondence in the following terms was included, reiterating a request made by Mr Frewen on 11 May 2004, for further time to comply:

    ‘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.’

  4. The Tribunal received a Statement of Contentions from the grantee party for all of the matters the subject of this decision on 12 May 2004.

  5. At the Listing Hearing convened by Ms Murphy, the Tribunal’s Acting Senior Caseflow Manager on 21 May 2004, Mr Jerome Frewen reiterated his written request of 17 May 2004. The grantee party opposed the native title party’s request for additional time and an ‘on country’ hearing, preferring that these matters proceed directly to inquiry on the papers. The Government party concurred with this view during the hearing, and subsequently reiterated its position in a written submission lodged with the Tribunal on 27 May 2004 in which it 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.

  6. A further Listing Hearing was convened by me on 28 May 2004.  These matters were heard in conjunction with a number of other Widji objections in which the same request for further time to submit affidavit evidence had been made and where the Government and grantee parties requested dismissal of the objections.  In matters WO03/668 and WO03/764 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.  Written reasons were subsequently provided (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)

  7. On 28 May 2004, I also dismissed the present objections for similar reasons to those set out in paras [19]-[23] of the reasons in WO03/668 and WO03/764 and also having 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. There is no need to repeat them. I find that the contentions lodged on 17 May 2004 by the native title party do not comply in particular with Direction 3(b) and 3(c) of the initial Directions or those made on 2 April 2004.

  8. The only other matter I wish to observe is that WO03/298 was lodged on 24 March 2003, which is over 12 months ago and WO03/708 on 25 August 2003, with the other objections lodged over the intervening months.  These matters have, 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

  1. Being satisfied that the applicant (native title party) in each of the applications WO03/298, WO03/303, WO03/378, WO03/381, WO03/667, WO03/703 and WO03/708 failed within a reasonable time to proceed with its expedited procedure objection application 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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