Leonne Velickovic (WC98/27)/Western Australia/Kenneth Raymond Maguire; John A Belingheri and Rodney S Lehmann

[2001] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic (WC98/27)/Western Australia/Kenneth Raymond Maguire; John A Belingheri and Rodney S Lehmann, [2001] NNTTA 17 (19 February 2001)

Application No:        WO00/360

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Leonne Velickovic (WC98/27) (the Objector)

- and -

The State of Western Australia (Government party)

- and -

Kenneth Raymond Maguire (Grantee parties)

And

Application No:        WO00/362

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Leonne Velickovic (WC98/27) (the Objector)

- and -

The State of Western Australia (Government party)

- and -

John A Belingheri and Rodney S Lehmann (Grantee parties)

REASONS FOR A DETERMINATION

Tribunal:       The Hon E M Franklyn QC
Place:             Perth
Date:              19 February 2001

Catchwords: Native Title – future act – expedited procedure objection application – objection dismissed for failure within a reasonable time to comply with directions or to proceed with the objection application.

Legislation:Native Title Act 1993 (Cth) s 148.

[1] In respect of these expedited procedure objection applications, each dated and lodged on 23 March 2000, directions were made at a preliminary conference held on 7 September 2000.  Those directions, in each case, required (inter alia) the State to provide to the Tribunal and each other party on or before 2 November 2000 a statement of its contentions and specified information and documents, the native title party to provide the Tribunal and each other party on or before 9 November 2000 a statement of its contentions to include specified information as to the nature and location of sites or areas of particular significance on or adjacent to the proposed tenements, relevant documents and a statement of the evidence to be given by any witness on its behalf, and the grantee to provide on or before 16 November 2000 a statement of its contentions, its documents and statements of witnesses.   It is accepted practice that a grantee should not be obliged to comply with such directions until after compliance by the State and the native title party.

[2] The directions, as forwarded to the parties, included a note in the following terms.  “If the objector (the native title party) fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal, the Tribunal may dismiss the application (s 148(b)) Native Title Act 1993 (as amended).”

[3] In respect of each objection the State duly complied with the directions addressed to it but the native title party failed to comply with any part of those addressed to it and made no application to vary or extend its compliance date. It had still not complied with those directions by 23 November 2000, the date fixed at the preliminary conference of 7 September 2000 for a listing hearing to be held in respect of each matter. At that listing hearing, the native title party’s failure to comply was commented upon by the Tribunal Member dealing with the matter and the listing hearing of each was adjourned to 8 December 2000. There was still no compliance by the native title party by 8 December and the direction in each case was made requiring (inter alia) that on or before 21 December the native title party comply with the directions of 7 September 2000. The directions of 8 December also contained a note referring to the provisions of s 148(b) of the Native Title Act 1993 (the Act) in identical terms to the note on the directions of 7 September 2000.
[4] There was still no compliance in either matter by the native title party by 30 January 2001, on which date letters, in the following terms, were sent to the native title party at its address for service shown in each of the objection applications:

29 January 2001  Reference:  WO00/360

Mr Leonne Velickovic
Indigenous Exploration and Drilling Pty Ltd
C/- PO Box 601
Applecross WA 6153

Dear Mr Velickovic

WO00/360: Leonne Velickovic (WC98/27) and Kenneth Raymond Maguire (P15/4349 & P15/4350)

Failure to comply with directions made 8 December 2000

This matter was last heard by the Tribunal on 8 December 2000 at which time  it was noted that you had not complied with the directions made on 7 September 2000. Amended directions were made requiring compliance by 21 December 2000. A copy of the amended directions was posted to the address shown above. To date, the Tribunal has not received documents in compliance with these directions.

Deputy President Franklyn is currently considering dismissing this objection on the basis of your failure to comply with the Tribunal's directions. If you wish to make any submissions on the matter, could you please provide them to the Tribunal and other parties by 7 February 2001.

Yours sincerely

Rita Farrell
Case Manager - Future Act Unit
Tel: [phone]
Fax: [phone]
Email: [email protected]

30 January 2001  Reference:  WO00/362

Mr Leonne Velickovic
Indigenous Exploration and Drilling Pty Ltd
C/- PO Box 601
Applecross WA 6153

Dear Mr Velickovic

WO00/362: Leonne Velickovic (WC98/27) and John A Belingheri & Rodney S Lehmann (P15/4351)

Failure to comply with directions made 8 December 2000

This matter was last heard by the Tribunal on 8 December 2000 at which time  it was noted that you had not complied with the directions made on 7 September 2000. Amended directions were made requiring compliance by 21 December 2000 . A copy of the amended directions was posted to the address shown above. To date, the Tribunal has not received documents in compliance with these directions.

Deputy President Franklyn is currently considering dismissing this objection on the basis of your failure to comply with the Tribunal's directions. If you wish to make any submissions on the matter, could you please provide them to the Tribunal and other parties by 7 February 2001.

Yours sincerely

Rita Farrell
Case Manager - Future Act Unit
Tel: [phone]
Fax: [phone]
Email: [email protected]

[5] No reply was received to either letter by 7 February or at all.  The Tribunal, by the case manager responsible for each matter, contacted Mr Frewen of Indigenous Exploration and Drilling Pty Ltd, the objector’s representative who had appeared on the objector’s behalf at the preliminary conference and listing hearings.  Mr Frewen confirmed receipt of the letters and contact by him in respect thereof with the native title party but advised that he had no instructions.

[6] The Tribunal finds that the native title party has failed within a reasonable time to proceed with each of the expedited procedure objection applications WO00/360 and WO00/362 and to comply with the aforesaid directions of the Tribunal in relation thereto. Each such application is dismissed pursuant to the provisions of s 148(b) of the Act.

E M Franklyn QC

Deputy President