Leonne Velickovic on behalf of Widji People/Western Australia/Vosperton Resources Pty Ltd
[2004] NNTTA 70
•22 July 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Vosperton Resources Pty Ltd, [2004] NNTTA 70 (22 July 2004)
Application Nos: WO03/675; WO04/6
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-
Vosperton Resources Pty Ltd (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 Gary Billing, Vosperton Resources Pty Ltd.
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
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 licences P27/1572; P27/1573 and P27/1574 to Vosperton Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 11 February 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E15/774; E15/803; E26/107; E26/108; E27/293 and E27/302 to Vosperton Resources Pty Ltd (‘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 expedited procedure objection applications with the Tribunal:
· in relation to the 2003 prospecting licences on 12 August 2003 (designated WO03/675);
·and in relation to the 2004 exploration licences on 11 February 2004 (designated WO04/6).
In relation to two of the 2004 exploration licences (E26/107, E26/108) an expedited procedure objection application was lodged on 19 April 2004 by Linda Champion on behalf of the Central West Goldfields People (Designated WO04/41). This objection application has not yet been heard. The parties have indicated that no agreement is likely and the Tribunal has made its usual directions to prepare for the inquiry. A likely hearing will be convened on 19 August 2004. Until objection WO04/41 is resolved the exploration licences can not be granted.
Relevant Facts
The area, location, and percentage to which the grantee party’s 2003 prospecting licences are overlapped by the registered native title claim is as follows:
· P27/1572 – 199.68ha, 18 km north of Kalgoorlie, 100% overlap
· P27/1573– 200ha, 17 km north of Kalgoorlie, 100% overlap
· P27/1574– 200ha, 16 km north of Kalgoorlie, 100% overlap
The area, location, and percentage to which the grantee party’s 2004 exploration licences are overlapped by the registered native title claim is as follows:
· E15/774 – 56.25km2, 50 km north of Kalgoorlie, 9.91% overlap
· E15/803 – 56.25km2, 50 km north of Kalgoorlie, 87.1% overlap
· E26/107 – 56.25km2, 50 km north of Kalgoorlie, 73.7% overlap
· E26/108 – 56.25km2, 50 km north of Kalgoorlie, 92.7% overlap
· E27/293 – 56.25km2, 50 km north of Kalgoorlie, 89.9% overlap
· E27/302 – 56.25km2, 50 km north of Kalgoorlie, 58.7% overlap
The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to objection number WO03/675 on 26 August 2003. The Direction in respect of the native title party was as follows:
‘(3)On or before 14 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.’
Identical Directions were issued in relation to WO04/6 on 24 February 2004 requiring native title party compliance by 8 October 2004.
The Tribunal convened an adjourned Status Conference into WO03/675 and adjourned preliminary conference into WO04/6 on 24 March 2004, at which time the grantee party advised it would prefer to proceed to Inquiry following the breakdown of negotiations. Negotiations had failed as the grantee party preferred to use 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.
On 26 March 2004 a Directions Hearing to establish the timetable on which a number of objection applications involving the Widji People would proceed to inquiry was convened by me and new Directions were issued requiring the native title party to comply on or before 30 April 2004 in WO03/675 and 9 July 2004 in WO04/6. The native title party representative, Mr Jerome Frewen, was not present at this hearing and was advised of this timetable in writing on 30 March 2004. No response to this correspondence was received by the Tribunal.
On 6 April 2004, the grantee representative requested that a further amendment to Directions be made that would set identical compliance dates for both objection matters. As the native title party and State representatives agreed with this proposal, I amended Directions accordingly, requiring native title party compliance on or before 9 July 2004 in both objection applications. The amended compliance dates were subsequently re-confirmed with all parties via email correspondence on 13 May 2004.
The Government party complied with Directions initially set for this matter on 23 March 2004 and amended statements of contention were submitted by the Government party on 22 April 2004 in response to the 26 March 2004 Directions.
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. However, no request by the native title party to further amend Directions to take this into consideration accompanied the advice.
On 14 July 2004, the Tribunal wrote to the native title party and all other parties in the following terms:
As at 14 July 2004 (by which time the native title party was due to comply with the 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 in this correspondence.
At the 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. The grantee party supported this submission.
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 evidence. 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 14 July 2004 the native title party’s attention was again drawn to the fact that it had not complied with the amended directions of 6 April 2004 and the possible consequences. I note that on 6 April 2004 Mr Frewen on behalf of the native title party consented to the new date for compliance of 9 July 2004, for both objection applications, but failed to comply.
I also wish to observe that WO03/675 was lodged on 12 August 2003, which is almost 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 this objection.
Decision
Being satisfied that the applicant (native title party) in the applications WO03/675 and WO04/6 failed within a reasonable time to proceed with its expedited procedure objection applications 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
22 July 2004
2
0