Leonne Velickovic on behalf of Widji People/Western Australia/Steven Kenneth Oxenburgh - [2004] NNTTA 68

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Steven Kenneth Oxenburgh, [2004] NNTTA 68 (22 July 2004)

Application No: WO03/819

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-

Steven Kenneth Oxenburgh (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 Steven Kenneth Oxenburgh

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 24 September 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 P24/3740 to Steven Kenneth Oxenburgh (‘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 licence with the Tribunal on 30 September 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:
· P24/3740 – 5.5ha, 23 km north of Kalgoorlie, 100% overlap
The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry into this objection application on 20 October 2003. The Direction in respect of the native title party was as follows:
‘(3)On or before 24 May 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.’
On 8 April 2004 a request was made by the parties to amend Directions, allowing further time for negotiations. This was approved, and re-set native title party compliance to 21 June 2004.
The Government party complied with Directions initially set for this matter on 6 May 2004.
Status Conferences were convened on 19 May 2004, 9 June 2004 and 16 June 2004, but not attended by Mr Frewen who represents the native title party. On 19 May 2004 the grantee party advised that he would prefer to proceed to Inquiry following the breakdown of negotiations. However, as the native title party representative was unable to attend this conference, the grantee party representative agreed to an adjournment until 16 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.
At a further adjourned Status Conference convened by the Tribunal on 16 June 2004, which was not attended by the native title party representative for the reason indicated above, the grantee party representative reiterated the request that this matter proceed to inquiry as a consequence of the breakdown of negotiations. In consideration of Mr Frewen’s unavailability, both the Government and grantee parties agreed to a further amendment to Directions that, if approved, would re-set native title party compliance to 15 July 2004. The Government and grantee parties also agreed to postpone any further hearings on this matter until after Mr Frewen was due to return from overseas.
An attempt was made via email correspondence forwarded on 18 June 2004 to obtain Mr Frewen’s consent to the proposed amendment to Directions, as he had indicated an ability to deal with urgent matters in this way during his absence. However, no response was received and the native title party compliance date remained as set by the amended Directions (ie. 21 June 2004).
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 previously amended 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 the adjourned 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 8 April 2004 and the possible consequences. I note that Mr Frewen on behalf of the native title party consented to the new date for compliance of 21 June 2004, but failed to comply.
The only other matter I wish to observe is that WO03/819 was lodged on 30 September 2003, which is well over 9 months ago. This matter has, therefore, been in the system for some time and one would have expected 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 WO03/819 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