Leonne Velickovic on behalf of the Widji People/Anglogold Ashanti Australia Ltd/Western Australia

[2006] NNTTA 8

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Anglogold Ashanti Australia Ltd/Western Australia, [2006] NNTTA 8 (10 February 2006)

Application No:        WO05/307

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

-and-

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

Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

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Anglogold Ashanti Australia Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  10 February 2006

Catchwords:             Native title – future act – proposed grant of prospecting licences – expedited procedure objection application – failure to comply with directions – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b)

Cases:Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner

Representative of the

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

Representative of the

grantee parties:                  Mr Marcus Walter, M & M Walter Consulting

Representatives of the       

Government party:           Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 18 May 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P15/4517, P15/4526 and P15/4527 (‘the proposed licences’) to Anglogold Ashanti Australia Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 7 June 2005, Leonne Velickovic on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 - (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences.

3. The area, location and extent to which the proposed licences are overlapped by the native title party are as follows:

• P15/4517 – 98.65 hectares, 31 kilometres easterly of Kambalda in the Shire of Coolgardie, 100% overlap;

• P15/4526 – 159.61 hectares, 18 kilometres easterly of Kambalda in the Shire of Coolgardie, 100% overlap;

• P15/4527 – 153.23 hectares, 17 kilometres easterly of Kambalda in the Shire of Coolgardie, 100% overlap.

1. In addition to the overlaps documented above, the registered claim of Ngadju People (WC99/2) entirely overlaps the proposed licences.  However, the Ngadju People have not lodged objections in relation to the proposed licences. 

Relevant Facts

1. The Tribunal made directions on 22 June 2005 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 affidavits on or before 16 January 2006. 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 the Preliminary Conference held on 5 July 2005, at which all parties were present, the representative for the grantee party advised that the grantee would only consider the Regional Standard Heritage Agreement for the Goldfields region and was not prepared to execute the alternative heritage agreement proposed by the native title party.  Directions remained as set pending the four month objection closing date of 19 September 2005. 

3. On 29 November 2005 the Tribunal received email correspondence from Mr Jerome Frewen, the representative for the native title party, advising that cultural considerations precluded the scheduling of arbitral hearings or compliance with directions before March 2006.  The grantee and Government parties opposed such a lengthy extension of the time for compliance.  During the Status Conference of 14 December 2005, at which the native title party was unrepresented, the representative for the grantee party confirmed that the grantee wished the dates for compliance to remain as originally set.  Mr Frewen was advised of this decision by email on 22 December 2005.

4. A Listing Hearing was convened on 2 February 2005, for which Mr Frewen was once more unavailable, Mr Marcus Walter, representing the grantee party, confirmed that the grantee wished this matter to be determined by the Tribunal as soon as practicable on the basis that the joint venture partner was not prepared to enter into a Widji alternative heritage agreement.  Mr Frewen was advised of the outcomes of the Listing Hearing and the date for the adjourned Listing Hearing by email on 3 February 2006.

5. The Government party has complied with directions and I infer from the lack of submissions that the grantee party wishes to rely on the Government party’s documents.  No contentions or evidence from the native title party have been forthcoming to date.

6. On 10 February 2006 I convened a Listing Hearing at which the Government party supported by the grantee party made application to dismiss the objection application pursuant to s 148(b) of the Act on the basis of non-compliance with the Tribunal’s directions by the native title party. Mr Frewen was not present at the hearing despite being advised of it on 3 February 2006 and that dismissal of the objection may be considered. He provided no reasons for his non-attendance or reasons for his client’s non-compliance with directions and made no application for adjournment or extension of time.

1. It has been clear to the Widji native title party since 5 July 2005, confirmed on 22 December 2005, that there was no prospect of a mutually agreed outcome.  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 directions having submitted no statements of contention or supporting evidence despite having been informed of the possible consequences of a failure to comply.  The reasons provided in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/185 and WO04/198, [2005] NNTTA 4 (28 February 2005), Hon C J Sumner (at [12]-[13]) are applicable in this matter. I note that the Widji native title party habitually fails to comply with the Tribunal’s directions and I am not satisfied that there would be compliance even if further time was allowed.

2. I also note for the record that the Government party has proposed an extra condition to be imposed on the grant of the proposed licences, requiring that the grantee party, if so requested by the Ngadju 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 Ngadju 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 People are protected.

Decision

1. Expedited procedure objection application WO05/307 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
10 February 2006