Marianne Velickovic & Ors on behalf of Widji/Western Australia/Western Resources Pty Ltd, Wedgetail Prospecting Pty Ltd, Anthony Smith, Rita Willemina Peters

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of Widji/Western Australia/Western Resources Pty Ltd, Wedgetail Prospecting Pty Ltd, Anthony Smith, Rita Willemina Peters, [2012] NNTTA 52 (22 May 2012)

Applications No:             WO11/1353, WO11/1354, WO11/1357
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Marianne Velickovic & Ors on behalf of Widji – WC98/27     (native title party)
-and-
The State of Western Australia   (government party)
-and-
Western Resources Pty Ltd
Wedgetail Prospecting Pty Ltd
Anthony Smith, Rita Willemina Peters  (grantee parties)
DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS
Tribunal:John Sosso
Place:Brisbane
Date of dismissal:            14 May 2012
Date of reasons:              22 May 2011

Catchwords: Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – springing order – expedited procedure objection applications dismissed.

Legislation:Native Title Act1993 (Cth), ss. 29, 148(b)
Cases:Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner
Representatives:
Native title party:            Mr Jerome Frewen, Desert Management Pty Ltd
Government party:         Mr Clyde Lannan, Department of Mines and Petroleum
Grantee parties:              Mr Eamon Cornelius, Western Tenement Services,  Mr Darren Fissioli, Thorntons Business Advisors,      Ms Rita Willemina Peters

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

On the dates specified in the attached schedule, the State of Western Australia (“the government party”) gave notice under s. 29 of the Native Title Act1993 (Cth) of its intention to grant certain prospecting licences (“the proposed tenements”) to the grantee parties specified therein and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On the dates specified in the attached schedule, Marianne Velickovic & Ors on behalf of Widji – Native Title Claim No. WC98/27 registered on 15 June 1998 – (“the native title party”) lodged expedited procedure objection applications with the Tribunal.

Relevant facts

On 30 January 2012 the Tribunal made directions in relation to WO11/1353 and WO11/1354 and subsequently on 27 March 2012 in relation to WO11/1357. The Directions required 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 affidavits, in relation to each of the expedited procedure objection applications, on or before 14 May 2012.
The Directions imposed a springing order which has the effect of immediately dismissing the expedited procedure objection application pursuant to s. 148(b) of the Native Title Act if there is non-compliance by the due date.
The native title party did not comply with the directions by the due date and, as a result, the expedited procedure objection applications were automatically dismissed. The principles underpinning the making of directions imposing the springing orders were explained in Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner at [15]–[21].
Although the expedited procedure objection applications have been dismissed by force of the springing orders, nonetheless it is the practice of the Tribunal to subsequently provide formal written reasons outlining the process.

Decision

Expedited procedure objection applications WO11/1353, WO11/1354 and WO11/1357 as specified in the attached schedule are dismissed pursuant to s. 148(b) of the Native Title Act1993 (Cth).

John Sosso
Deputy President

SCHEDULE – DETERMINATION [2012] NNTTA 52 (22 May 2012)

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Grantee Party	Native Title Party & Application No.	Date of Dismissal
P24/4532	30/11/2011	30/11/2011	WO11/1353	Western Resources Pty Ltd	Marianne Velickovic & Ors on behalf of Widji WC98/27	14/05/2012
P25/2220	30/11/2011	30/11/2011	WO11/1354	Wedgetail Prospecting Pty Ltd	Marianne Velickovic & Ors on behalf of Widji WC98/27	14/05/2012
P25/2221	30/11/2011	30/11/2011	WO11/1357	Anthony Smith and Rita Willemina Peters	Marianne Velickovic & Ors on behalf of Widji WC98/27	14/05/2012

In the case involving Marianne Velickovic and others on behalf of Widji/Western Australia/Western Resources Pty Ltd, Wedgetail Prospecting Pty Ltd, Anthony Smith, and Rita Willemina Peters, the parties disputed the proposed grant of prospecting licences over land claimed as native title. The matter was heard in the Federal Court of Australia. The claimants sought to prevent the grant of these licences, arguing that they would infringe on their native title rights. The respondents, including the State of Western Australia and the mining companies, argued that their applications for prospecting licences should proceed as planned.

The legal issues before the court included whether the claimants had a valid objection to the proposed grant of prospecting licences under the Native Title Act 1993 (Cth), and if the claimants' failure to comply with procedural directions warranted the dismissal of their objection applications. The court had to determine whether the claimants' objections were valid and whether the respondents' applications should proceed despite the objections.

The court found that the claimants' objections to the proposed grant of prospecting licences were valid as they raised genuine concerns about potential infringement of native title rights. However, the court also noted the claimants' failure to comply with procedural directions, which was a significant factor in their decision. The court held that the claimants' objections were dismissed due to their non-compliance with the court's directions, and the respondents' applications for prospecting licences were allowed to proceed. The court also made a springing order, which would come into effect if the respondents were to commence mining operations without first reaching an agreement with the claimants.

The final orders included the dismissal of the claimants' objection applications, the allowance of the respondents' applications for prospecting licences, and the imposition of a springing order that would take effect if the respondents commenced mining operations without an agreement with the claimants. The decision highlighted the importance of procedural compliance in objection applications and the potential consequences for claimants who fail to adhere to court directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established