Linda Champion on behalf of the Central West Goldfields People/Western Australia/New Hampton Goldfields Ltd

[2005] NNTTA 26

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion on behalf of the Central West Goldfields People/Western Australia/New Hampton Goldfields Ltd, [2005] NNTTA 26 (15 April 2005)

Application No:        WO04/110

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

-and-

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

Linda Champion on behalf of the Central West Goldfields People - WC99/29 (native title party)

-and-

The State of Western Australia (Government party)

-and-

New Hampton Goldfields Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            14 April 2005
Date of reasons:              15 April 2005

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

Representative of the

native title party:               Ms Elizabeth Sambo

Representative of the

grantee party:  Mr John Clarke, Wanati 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 2 June 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E16/251 (‘the proposed licence’) to New Hampton Goldfields 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).

2. On 28 June 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 an expedited procedure objection application with the Tribunal in relation to the proposed licence.

Relevant facts

1. The proposed licence comprises an area of 20.68 square kilometres, 55 kilometres north westerly of Coolgardie in the Shire of Coolgardie, and is overlapped 100% by the registered native title claim.

2. The Tribunal made directions on 13 July 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 31 January 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.

3. At a preliminary conference convened on 27 July 2004 and at which all parties were represented, the grantee party representative Mr John Clarke advised that the grantee party had executed a Regional Standard Heritage Agreement (‘RSHA’), and was not prepared to negotiate on the basis of any alternative agreement. However, at an adjourned preliminary conference on 2 September 2004 Mr Clarke was advised that the native title party would be meeting to discuss modifications to the RSHA and agreed to wait for the outcome of those discussions.  Accordingly on 3 September 2004 directions were amended with the consent of all parties to bring this matter into line with other matters involving the same grantee party. Native title party compliance was now required on or before 28 March 2005.

4. A status conference was convened on 22 December 2004, at which time the Tribunal heard that the native title party had not adopted a modified version of the RSHA but instead had ratified its own alternative agreement.  The grantee party considered and rejected this alternative agreement and requested that the matter be determined by the Tribunal.  Parties agreed that dates for compliance should stand as made on 3 September 2004 and were reminded of these dates by email following the conference.  A further email reminder was also sent to all parties on 12 April 2005.

5. The Government party has complied with directions.  No native title party contentions or evidence has been forthcoming to date.

6. On 14 April 2005 I convened a Listing Hearing, at which the grantee party supported by the Government party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with directions by the native title party. The native title party representative advised the Tribunal that the claim group had been occupied with other issues but that it accepted that it was non-compliant with directions.

7. This objection has been in inquiry since the objection document was lodged on 28 June 2004 and it has been clear to the native title party since at least 22 December 2004 that there was no prospect of a mutually agreed outcome.  The time for compliance was not shortened but rather extended to enable New Hampton Goldfields matters to be dealt with concurrently.  No satisfactory explanation has been given for the failure to comply.  Applying the principles in Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 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 directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.

8. I note for the record that during the Listing Hearing of 14 April 2005 the grantee party advised its intention to comply with relevant heritage legislation and has undertaken to involve the native title party in any heritage work undertaken.

Decision

1. The objection application is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
15 April 2005