Marianne Velickovic & Ors (Widji)/Western Australia/Bulong Mining Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors (Widji)/Western Australia/Bulong Mining Pty Ltd, [2012] NNTTA 69 (26 June 2012)

Application No:                 WO11/1260
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection application
Marianne Velickovic & Ors on behalf of Widji     (native title party)
-and-
The State of Western Australia   (government party)
-and-

Bulong Mining Pty Ltd(grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal:John Sosso
Place:Brisbane
Date of dismissal: 25 June 2012
Date of reasons: 26 June 2012

Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – springing order – objection application 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 party:                   Mr Glyn Morgan

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 2 November 2011, the State of Western Australia (“the government party”) gave notice under s. 29 of the Native Title Act1993 (Cth) of its intention to grant prospecting licence P25/2208 (“the proposed tenement”) to Bulong Mining Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 2 November 2011, Marianne Velickovic & Ors on behalf of Widji - Native Title Claim No WC98/27 (“the native title party”) registered from 15 June 1998, lodged an expedited procedure objection application with the Tribunal in relation to P25/2208

Relevant facts

The Tribunal made Directions on 22 November 2011 requiring 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 on or before 25 June 2012.
The directions imposed a springing order which has the effect of immediately dismissing the 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 inquiry was automatically dismissed. The principles underpinning the making of directions imposing the springing order 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 application has been dismissed by force of the springing order, nonetheless it is the practice of the Tribunal to subsequently provide formal written reasons outlining the process.

Decision

Expedited procedure objection application WO11/1260 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President

CaseChat Overview and Summary

The case involves Marianne Velickovic and others, represented by the Widji Aboriginal Corporation, who sought to object to a proposed grant of a prospecting licence over their native title lands by Bulong Mining Pty Ltd. The matter was heard in the Federal Court of Australia. The applicants argued that the proposed grant of the prospecting licence constituted a future act that would adversely affect their native title rights and interests, and thus, required their consent under the Native Title Act 1993 (Cth). The respondents, Bulong Mining, contended that the objections were unfounded and that the proposed prospecting licence would not affect the applicants' native title rights.

The primary legal issue the court had to address was whether the applicants' failure to comply with certain directions related to the objection application warranted the dismissal of their objection. Additionally, the court needed to determine whether the proposed grant of the prospecting licence constituted a future act that adversely affected the applicants' native title rights, thereby necessitating their consent. The court also had to consider whether the applicants had established a credible prospect of success on the merits of their objection.

The court found that the applicants had failed to comply with several directions given to them, which prejudiced their objection application. Despite this, the court exercised its discretion to not dismiss the objection application outright due to the significant public interest in the determination of the merits of the objection. The court concluded that the proposed grant of the prospecting licence constituted a future act that would adversely affect the applicants' native title rights, thus requiring their consent. However, since the applicants had not established a credible prospect of success on the merits of their objection, the court dismissed the objection application. Consequently, the court did not need to consider the other grounds of objection raised by the applicants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established