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

[2005] NNTTA 77

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion on behalf of the Central West Goldfields People/Western Australia/New Jackson Gold Ltd, [2005] NNTTA 77 (21 October 2005)

Application No:        WO04/119

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-

Jackson Gold Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  21 October 2005

Catchwords:  Native title – future act – proposed grant of prospecting licences – 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 Shannon McMahon, McMahon Mining Title Services  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 16 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 P24/3836, P24/3837, P24/3838, P24/3839, P24/3840 and P24/3936 (‘the proposed licences’) to Jackson Gold Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure. The proposed licences are located between 25 and 29 kilometres north of Kalgoorlie in the city of Kalgoorlie-Boulder.

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 licences.

3. The Widji (WC98/27) and Maduwonga People’s (WC99/9) native title claims also overlapped the proposed licences at the objection closing date.  However, neither of these native title parties lodged expedited procedure objection applications.  The Maduwonga People’s native title determination application was removed from the Register of Native Title claims on 12 September 2005.

Relevant facts

1. 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 14 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.

2. At a preliminary conference convened on 27 August 2004, at which all parties were represented, the grantee party representative, Mr Shannon McMahon, advised that the grantee party was not prepared to negotiate on the basis of an alternative heritage agreement offered by the native title party, having executed the Goldfields RSHA.  No amendments were made to Directions at this time.

3. The native title party had not complied by the due date but at a status conference on 10 March 2005 all parties consented to an amendment to directions to enable negotiations to take place about a modified Goldfields RSHA.  Native title party compliance was then due on 7 April 2005, subsequently postponed with consent of all parties to 5 May 2005.  Again, the native title party, despite a reminder from the Tribunal, did not comply.  After some delays because of the non availability of the representatives of the native title party (for reasons of ill health) and grantee party, directions were made on 22 June 2005 for native title party compliance on 14 July 2005.  The native title party was unable to comply by this date but at a listing hearing on 8 August 2005 all parties consented to a further adjournment on the basis that agreement was again a possibility based on a modified Goldfields RSHA.  On 9 September 2005 the Tribunal was informed that agreement was not possible and directions were made again for the native title party to comply on 23 September 2005.  The native title party did not comply but due to the native title party representative’s recurring ill health all parties agreed to allow a further time until 20 October 2005 for the native title party to comply.

4. On 17 October 2005, Ms Sambo was reminded by the Tribunal’s Senior Caseflow Manager of the impending compliance date and consequences of non-compliance via email and a follow up telephone conversation, during which Ms Sambo affirmed her intention to submit contentions in this matter.

5. The Government party has complied with directions and the grantee party has confirmed its intent to rely on those submissions.  No native title party contentions or evidence has been forthcoming to date.

6. On 21 October 2005 I convened a listing hearing, at which the grantee party representative supported by the Government party made application to dismiss the objection application pursuant to s 148(b) of the Act. The native title party representative was not present, despite attempts by the Tribunal to contact her by telephone.

7. This objection has been in inquiry since the objection application was lodged on 28 June 2004 and it has been clear to the native title party since at least 9 September 2005 that there was no prospect of a mutually agreed outcome.  Prior to that there were a number of occasions where the native title party failed to comply by the due date.  The time for compliance has also been extended in recognition of the native title party representative’s personal circumstances, yet no satisfactory explanation has been given for the current 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 the Government party will 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.  If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji and Central West Goldfields Peoples are protected.

Decision

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

Hon C J Sumner
Deputy President
21 October 2005