Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cazaly Resources Ltd
[2005] NNTTA 23
•12 April 2005
NATIONAL NATIVE TITLE TRIBUNAL
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cazaly Resources Ltd, [2005] NNTTA 23 (12 April 2005)
Application Nos: WO04/82 and WO04/83
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection applications
Linda Champion on behalf of the Central West Goldfields People – WC99/29 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Cazaly Resources 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: 12 April 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/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner
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/Cazaly Resources Limited, NNTT WO04/62, [2005] NNTTA 22 (12 April 2005), 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
Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266
Representative of the
Central West Goldfields
native title party: Ms Elizabeth Sambo
Representative of the
grantee party: Nathan McMahon, Cazaly Resources Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
On 24 March 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 P26/3240, P26/3241, P27/1630, P27/1631, P27/1632, P27/1633, P27/1634, P27/1635 and P27/1636 (‘the proposed licences’) to Cazaly Resources 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 19 May 2004, Leonne Velickovic on behalf of the Widji People (Registered Claim WC98/27) lodged an expedited procedure objection application with the Tribunal in relation to a number of prospecting licences, including the proposed licences. This objection was finalised on 12 April 2005 by determination that the expedited procedure is attracted (Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/62, [2005] NNTTA 22 (12 April 2005), Hon C J Sumner).
On 31 May 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 native title party’) lodged expedited procedure objection applications with the Tribunal in relation to the proposed licences (WO04/82 and WO04/83).
Relevant facts
The area, location and extent to which the proposed licences are overlapped by the Central West Goldfields registered native title claim is as follows:
P26/3240 and P26/3241 (WO04/82) – 183.65 hectares and 191.32 hectares respectively, 12 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap.
P27/1631-1636 inclusive (WO04/83) – between 46.18 hectares and 200 hectares, 13 to 15 kilometres north easterly of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap.
In relation to both matters, the Tribunal initially made directions on 15 June 2004 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 party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit on or before 22 November 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.
At preliminary conferences held between June and December 2004 parties indicated their intent to try to reach a negotiated outcome. At an adjourned preliminary conference convened on 11 January 2005 however, the grantee representative, Mr Nathan McMahon advised that the grantee party now wished to wait for the determination of the Widji objection application WO04/62 before deciding whether the outcome of the Central West Goldfields objections should be a mutually agreed one or one reached via the Inquiry process. On advice from a Tribunal case manager that a determination of WO04/62 would not be possible in advance of a decision on these objections, Mr McMahon advised instead that the matters should proceed directly to Inquiry. Directions were amended on 12 January 2005 to permit native title party compliance on or before 8 March 2005 and all parties were notified in writing. A Status Conference was convened on 15 February 2005 at which time it was reconfirmed that the matters were proceeding to Inquiry, and on 17 February 2004 all parties were reminded in writing of due dates for compliance and the date of the Listing Hearing.
A Listing Hearing was convened on 10 March 2005 by which time no submissions had been received from the native title party. The Tribunal heard from Ms Elizabeth Sambo, the native title party representative, that the 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 native title party compliance.
The Government party complied with directions by 15 November 2004 and the grantee party has sought to rely on those submissions. No native title party contentions or evidence has been forthcoming to date.
On 18 March 2005 I convened an adjourned Listing Hearing at which the native title party was unrepresented, 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 the objection applications pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party.
Since May 2004, I have dismissed a number of objection applications 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. In that matter and others I applied the principles enunciated by Member Sosso in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at para [13])) and do so again here.
These matters have been in inquiry since the objection documents were lodged on 31 May 2004 and while the parties made every effort to reach a mutually agreeable outcome, it has been clear to the native title party since at least 12 January 2005 that the objection applications would be resolved by inquiry and determination. Directions were amended at the request of the native title party to allow belated compliance and the native title party has had ample notice of, and reminders about, the date for compliance. With the exception of the possible issue relating to confidentiality of the proceedings the native title party has provided no satisfactory explanation for the failure to comply which is due to the lack of action by them. Although not pursued in this matter I have dealt with the possible excuse for non compliance based on the confidentiality issue in 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 and adopt those findings for the purpose of this inquiry. That decision explains that there are and have been since the inception of expedited procedure objection inquiries procedures in place to deal with the issue of the possible confidentiality of contentions and evidence. I find that the native title party 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 that the Central West Goldfields native title party can insist on a heritage survey to protect Aboriginal heritage.
Decision
Being satisfied that the applicant (native title party) has 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
12 April 2005
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