Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Maincoast Pty Ltd
[2005] NNTTA 16
•24 March 2005
NATIONAL NATIVE TITLE TRIBUNAL
Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Maincoast Pty Ltd, [2005] NNTTA 16 (24 March 2005)
Application Nos: WO04/191 WO04/152 WO04/153
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 (WO04/191) (Widji native title party)
and
Linda Champion on behalf of the Central West Goldfields People – WC99/29 (WO04/152 and WO04/153) (Central West Goldfields native title party)
-and-
The State of Western Australia (Government party)
-and-
Maincoast Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of dismissal: 18 March 2005
Date of reasons: 24 March 2005
Catchwords: Native title – future act – proposed grant of 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/Rocky Reef Mining Pty Ltd, NNTT WO03/707, [2005] NNTTA 8 (10 March 2005), Hon C J Sumner
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
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005) Hon C J Sumner
Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 & WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner
Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266
Representative of the
Widji native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Central West Goldfields
native title party: Ms Elizabeth Sambo
Representative of the
grantee party: Mr Nathan McMahon, Cazaly Resources Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS
Background
On 30 June 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P15/4656 and P30/987 (‘the proposed licences’) to Maincoast Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).
On 29 July 2004 Linda Champion, a named applicant and representative of the Central West Goldfields People – Native Title Claim No. WC99/29 registered on 4 October 1999 - (‘the Central West Goldfields native title party’) lodged expedited procedure objection applications with the Tribunal in relation to P15/4656 (WO04/152) and P30/987 (WO04/153).
On 16 August 2004 Leonne Velickovic on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 - (‘the Widji native title party’) lodged an expedited procedure objection application with the Tribunal in relation to P15/4656 (WO04/191).
Relevant facts
The area, location and extent to which the proposed licences are overlapped by the registered native title claims is as follows:
P15/4656 – 71.64 hectares, 18 kilometres westerly of Kambalda in the Shire of Coolgardie, 100% overlap
P30/987 – 53.47 hectares, 59 kilometres south westerly of Menzies in the Shire of Menzies, 100% overlap
The Tribunal initially made directions on 10 August 2004 (WO04/152 and WO04/153) and 31 August 2004 (WO04/191) for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title parties were to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit on or before 28 February 2005. 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.
At preliminary conferences held between August and October 2004 parties indicated their intent to try to reach a negotiated outcome. At an adjourned preliminary conference convened on 26 October 2004, the grantee party advised that it was in the process of negotiating a joint venture agreement with another company. During a further adjourned conference on 23 November 2004, Mr Nathan McMahon, now representing the grantee party, advised that the grantee was now only prepared to enter into a Regional Standard Heritage Agreement (‘RSHA’), which is not accepted by either native title party. At this point it became clear that a negotiated outcome would not be possible and that the matters would have to proceed to inquiry. The grantee party confirmed its request that the matters proceed to inquiry at a Status Conference on 19 January 2005 (at which the Widji native title party was unrepresented) and initially requested that the dates for compliance be brought forward to expedite the inquiry, before agreeing that directions could remain as set because Widji native title party agreement could not be immediately sought.
A Listing Hearing was convened on 10 March 2005 (at which the Widji native title party was again unrepresented) by which time no submissions had been received from either native title party. The Tribunal heard from Ms Elizabeth Sambo, the Central West Goldfields representative, that the Central West Goldfields native title party did intend to submit contentions and evidence but first required clarification of the process to ensure confidentiality of documents provided. All parties agreed to allow further time to 17 March 2005 for Central West Goldfields compliance.
The Government party complied with directions by 21 February 2005 and the grantee party has sought to rely on those submissions. No native title party contentions or evidence has been forthcoming to date.
Neither native title party representative was available to attend an adjourned Listing Hearing on 18 March 2005, despite advice of the date during the hearing of 10 March 2005 and written notification on 15 March 2005, including a reminder that the possible consequences of non-compliance with directions would be dismissal of the objection applications pursuant to s 148(b) of the Act. The Government party supported by the grantee party made application to dismiss all three objection applications pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title parties.
Since May 2004, I have dismissed a number of Widji objection pursuant to s 148(b) of the Act (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 where I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13])). One of the factors to be taken into account is the previous conduct of the objector in failing to comply. I have previously found that it has become common (but not universal practice) for the Widji native title party not to comply with the Tribunal’s directions (see for example Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd, NNTT WO03/707, [2005] NNTTA 8 (10 March 2005), Hon C J Sumner at [15]-[16]). This case is another example. The Central West Goldfields native title party on the other hand has a less compelling history of non-compliance although it has on occasion submitted only a statement of contentions and no supporting evidence which, as I pointed out in Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 & WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner, (at para [8]) leaves the native title party technically non-compliant with directions in those matters.
While habitual non-compliance is to be given more weight in the case of the Widji native title party it remains the fact that both the present matters have been in inquiry since the objections were lodged in July and August 2004 and it has been clear to both native title parties since at least 23 November 2004 that there was no prospect of a mutually agreed outcome. Directions remained as set on 10 and 31 August 2004 despite a request from the grantee party that they be amended to hasten the dates for compliance, and both native title parties have had ample notice of, and reminders about, the date for compliance. I find that the native title parties have failed within a reasonable time to proceed with their objections and to comply with the Tribunal’s initial directions having submitted no Statements of Contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.
I also note the Government party’s undertaking during the Listing Hearing of 18 March 2005 that it intends to impose an extra condition on the grant of the proposed licences requiring that the grantee party, if so requested by the Central West Goldfields People within ninety days of the grant of the proposed licences, shall within thirty days of the request execute the RSHA for the Goldfields region in favour of the Central West Goldfields People in respect of the area covered by the proposed licences (see Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [24]). This condition at least will have the effect of ensuring that the Central West Goldfields native title party can insist on a heritage survey to protect Aboriginal heritage. Given the 100% overlap with the Widji native title party’s objection and the fact there is some affinity between the two claimant groups I am satisfied that sites of particular significance to the Widji People will probably also be protected by such an agreement.
Decision
Being satisfied that the applicants (Widji and Central West Goldfields native title parties) have failed within a reasonable time to proceed with their 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
24 March 2005
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