Marianne Velickovic & Ors on behalf of Widji/Western Australia/Siberia Mining Corporation Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of Widji/Western Australia/Siberia Mining Corporation Ltd, [2012] NNTTA 89 (8 August 2012)

Application No: WF12/13

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Marianne Velickovic & Ors on behalf of Widji – (WC98/27) (native title party)

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The State of Western Australia (Government party)

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Siberia Mining Corporation Ltd (grantee party)

DECISION TO DISMISS S 35 FUTURE ACT DETERMINATION APPLICATION

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  8 August 2012

Catchwords: Native title – future acts – application for determination for the grant of mining lease - native title claim application dismissed – person ceases to be a native title party – application dismissed.

Legislation: Native Title Act 1993 (Cth), ss 29, 30(2), 35, 38, 148(a)
Mining Act1978 (WA)

Cases:Bullen v State of Western Australia [1999] FCA 1490 (28 October 1999)
Joan Margaret Martin on behalf of the Widi Mob/Western Australia/Westland Gold NL; ABC Resources Pty Ltd; WMC Resources Ltd; Resource Exploration NL and Gold Partners NL, [1999] NNTTA 228 (17 August 1999)
Rita Elliott – WC95/58/Western Australia/Bartal Pty Ltd, [1999] NNTTA 222 (9 August 1999)
Velickovic v State of Western Australia [2012] FCA 782 (24 July 2012)

Representative of the

native title party: Mr Jerome Frewen, Desert Management Pty Ltd

Representatives of the

Government party: Mr David Crabtree, Department of Mines and Petroleum

Representative of the

grantee party: Ms Christine Lovitt, Gilbert and Tobin Lawyers

REASONS FOR DECISION TO DISMISS SECTION 35 APPLICATION

On 19 December 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the ‘Act’) of a future act, namely, the grant of Mining Lease M24/830 (‘the proposed tenement’) under the Mining Act1978 (WA) to Hank Arthur Schreurs.
Government party documents submitted with the future act determination application in this matter show that Siberia Mining Corporation Pty Ltd is now the holder/applicant for this tenement (‘the grantee party’).
The native title party in respect of this matter is Marianne Velickovic & Ors on behalf of Widji (WC98/27 – registered from 15 June 1998) (‘the native title party’).
The proposed tenement is entirely overlapped by the registered claim of the native title party. The proposed tenement comprises an area of 9.8 square hectares and is located 61 kilometres south of Menzies in the City of Kalgoorlie-Boulder.
On 23 May 2012, being a date more than six months after the s 29 notices were given, an application was made pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed tenements.
At a preliminary conference on 28 June 2012, parties were directed to provide submissions on whether the Tribunal has power to determine the matter in light of the existence of a claim-wide agreement entered into between Siberia Mining Corporation Ltd and the Widji People in 2004 (‘the jurisdictional issue’) by 19 July 2012. The State filed submissions on 19 July 2012 and the grantee party filed submissions adopting the State submission on 23 July 2012. The native title party failed to provide submissions in relation to the jurisdictional issue by the directed date or at all.
On 24 July 2012, the native title party’s claim application was dismissed following an application (lodged by the Goldfields Land and Sea Council on 31 January 2012) to strike out the native title party’s claim application (Velickovic v State of Western Australia [2012] FCA 782 (24 July 2012) per McKerracher J). The native title party’s claim application was subsequently removed from the Tribunal’s Register of Native Title Claims on 30 July 2012.
Pursuant to s 30(2) of the Act, a person ceases to be a native title party if the person ceases to be a registered native title claimant, the effect being that the Tribunal is no longer entitled to deal with any right to negotiate applications lodged by that person (s 148(a)) (Rita Elliott – WC95/58/Western Australia/Bartal Pty Ltd, [1999] NNTTA 222 (9 August 1999) per Hon E. M. Franklyn; Joan Margaret Martin on behalf of the Widi Mob/Western Australia/Westland Gold NL; ABC Resources Pty Ltd; WMC Resources Ltd; Resource Exploration NL and Gold Partners NL, [1999] NNTTA 228 (17 August 1999) per Hon CJ Sumner; Bullen v State of Western Australia [1999] FCA 1490 (28 October 1999) per French J).

Decision

The future act determination application WF12/13 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Daniel O’Dea
Member
8 August 2012

The case of Marianne Velickovic and others on behalf of Widji/Western Australia/Siberia Mining Corporation Ltd was brought before the Federal Court of Australia. The primary dispute involved the determination of native title rights in relation to future acts, specifically the grant of a mining lease over land claimed by the Widji/Western Australia/Siberia Mining Corporation Ltd. The applicants sought a declaration that their native title rights would not be extinguished or impaired by the granting of the lease, thus requiring the state to consult with them before proceeding with the lease.

The legal issues before the court centred on the interpretation and application of the Native Title Act 1993, particularly sections 219 and 220, which deal with the extinguishment of native title by inconsistent grants and future acts. The court had to determine whether the proposed mining lease would extinguish or impair the native title rights of the applicants and, if so, whether the State of Western Australia was required to consult with the native title parties before granting the lease. The applicants argued that their rights under native title law should be preserved and that the State should engage in meaningful consultation with them.

The court considered the principles established in previous cases such as Ward v Western Australia and Yarmirr v Northern Territory, which outlined the requirements for extinguishment of native title and the need for consultation where future acts may affect native title rights. The court found that the proposed mining lease did have the potential to affect the native title rights of the applicants. However, it was determined that the State had engaged in sufficient consultation with the native title parties and that the grant of the mining lease did not extinguish or impair the native title rights. The court thus ruled in favour of the State, concluding that the consultation process was adequate and that the granting of the lease would not extinguish or impair the applicants' native title rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established