Leonne Velickovic on behalf of Widji People/Western Australia/Westex Resources Pty Ltd

[2004] NNTTA 101

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Westex Resources Pty Ltd, [2004] NNTTA 101 (4 November 2004)

Application No:        WO03/709

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-

Westex Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of Dismissal:           4 November 2004
Date of Reasons:             4 November 2004

Catchwords:  Native title – future act – proposed grant of prospecting 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), 237

Cases: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

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

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

1. 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 P26/3121 to Westex Resources (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to P26/3121 on 25 August 2003.

Relevant Facts

1. The area, location, and percentage to which the grantee party’s  prospecting licence is overlapped by the registered native title claim is as follows:

   ·     P26/3121 – 195.92ha, 14 kilometres south of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap.

2. The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to the expedited procedure objection application on 16 September 2003. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 23 April 2004. 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.

3. At the request of the parties, the Directions were vacated on 23 April 2004 to allow other related tenements applied for by the grantee party to be notified under s 29 of the Act, enabling them to be granted as part of one project. The Tribunal was also advised that it was also intended that negotiations between the grantee and native title parties would encompass all tenements within this project.

4. On 15 September 2004 at an Adjourned Status Conference convened by the Tribunal, the grantee party representative requested that Directions be reinstated and the matter proceed to inquiry as the notification process was proceeding more slowly than expected and as a consequence of the grantee party having considered and rejected the agreement presented by the native title party.  As all the parties present consented to the request and Mr Jerome Frewen, the native title party representative subsequently advised of his consent, I reinstated Directions on 22 September 2004, setting native title party compliance to 13 October 2004.  Mr Jerome Frewen was unable to attend the hearing of 15 September 2004, nor a further adjourned Status Conference convened on 29 September 2004.  Mr Frewen was notified in writing of the outcomes of both hearings, including a reminder of the native title party compliance date. 

5. The Government party complied with Directions initially set for this matter on 14 April 2004.  The grantee party advised on 29 September 2004 that it would not be making any specific submission and would rely on the State’s contentions in this matter.

6. On 28 September 2004, the Tribunal wrote to the native title party and all other parties pointing out that the consequences of non-compliance with directions may be dismissal of the objection under s 148(b) of the Act. No response was received by the Tribunal from the native title party addressing the issues raised in this correspondence.

7. At the Listing Hearing I convened on 4 November 2004, there had been no compliance by the native title party and the Government party submitted that the application 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. Mr Frewen was invited to make submissions on behalf of the native title party in response to the Government party’s submission but declined to do so.

8. Since May 2004, I have dismissed 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 (see for example, 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 that matter I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13]) on the use of the power to dismiss an objection application under s 148(b) of the Act for failure to comply with the Tribunal’s directions. One of the factors to be taken into account is the previous conduct of the objector, such as previous failures to comply with the Tribunal’s directions. Based on the Tribunal’s experience in this and previous matters I have considered involving the Widji native title party, I have concluded that it has become their practice not to comply with the Tribunal’s directions. It has become general practice for the Widji native title party to attempt to negotiate an agreement with a grantee party to secure withdrawal of an objection, but if no agreement can be reached and an inquiry becomes necessary they have in all matters to date failed to comply with the Tribunal’s directions.

9. In this matter I find that the native title party has failed within a reasonable time to proceed with its objection and to comply with the Tribunal’s initial or amended Directions, having submitted no Statements of Contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.

10. The objection application in this matter was lodged on 25 August 2003, which is more than 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. From previous matters Mr Frewen and the Widji native title party have been placed on notice of the evidence required under s 237 of the Native Title Act 1993 (Cth) if an objection is to be upheld but have failed to provide it.

Decision

1. Being satisfied that the applicant (native title party) 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
4 November 2004