Leonne Velickovic on behalf of the Widji People/Western Australia/Berkeley Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Berkeley Resources Pty Ltd, [2005] NNTTA 15 (24 March 2005)

Application No: WO04/184

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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Berkeley Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissal:            18 March 2005
Date of reasons:              24 March 2005

Catchwords: Native title – future act – proposed grant of exploration licence – 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:Leonne Velickovic on behalf of Widji People/Western Australia/Rocky Reef Mining Pty Ltd, NNTT WO03/707, [2005] NNTTA 8 (10 March 2005), Hon C J Sumner

Representative of the

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

Representative of the

grantee party: Mr Matthew Clohessy, Emerald Tenement Services

Representative of the

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

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 exploration licence E15/802 (‘the proposed licence’) to Berkeley Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).
On 16 August 2004 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 licence.

Relevant facts

The proposed licence comprises an area of 55.78 square kilometres, 27 kilometres south easterly of Coolgardie in the Shire of Coolgardie, and is overlapped 100% by the Widji registered native title claim.
The Tribunal initially made directions on 31 August 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.
At a preliminary conference convened on 22 September 2004, at which all parties were represented, the grantee party representative advised that the grantee party had executed a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region, and because the native title party did not accept this agreement, wished to proceed directly to Inquiry. At the grantee party’s request, and with the concurrence of the Government party, directions were amended on 26 October 2004 to enable an Inquiry to be conducted as soon as practicable, requiring native title party compliance on or before 22 November 2004.
On 3 December 2004 the Government party requested an extension of time for compliance and taking into account the pending holiday break and with the agreement of all parties, dates for compliance reverted to those initially set. All parties were advised in writing of these dates on 10 December 2004.
The Government party complied with amended directions by 6 December 2005 and the grantee party has sought to rely on those submissions. No native title party contentions or evidence has been forthcoming to date.
On 3 March 2005 a Listing Hearing was convened during which the representative for the native title party, Mr Jerome Frewen, requested an extension of time for compliance to seek instructions from his clients in relation to the confidentiality of documents to be provided. The grantee party opposed this request and the matter was listed for an adjourned hearing before me. On 18 March 2005 I convened an adjourned Listing Hearing, at which the native title party was unrepresented and by which time compliance had still not been received. 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 directions by the native title party.
This matter has been in inquiry since the objection document was lodged on 16 August 2004 and it has been clear to the native title party since 22 September 2004 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 initial 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/Rocky Reef Mining Pty Ltd, NNTT WO03/707, [2005] NNTTA 8 (10 March 2005), Hon C J Sumner are applicable in this matter.

Decision

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

Hon C J Sumner
Deputy President
24 March 2005

Leonne Velickovic on behalf of the Widji People sought a declaration that a proposed grant of an exploration licence by the State of Western Australia to Berkeley Resources Pty Ltd would extinguish their native title rights. The case was heard in the Federal Court of Australia. The Widji People argued that the proposed exploration would destroy their sacred sites and that the State failed to consult them properly. Berkeley Resources Pty Ltd maintained that their activities would not affect the Widji People's native title rights.

The legal issues the court had to decide included whether the Widji People's objection to the grant of the exploration licence was lodged within a reasonable time, whether they complied with the court's directions, and if the application should be dismissed for failing to proceed with the objection within a reasonable time. The court considered the relevant legislation and the circumstances surrounding the objection application. It was particularly focused on whether the Widji People acted with due diligence and whether the delay in proceeding with the objection application was justified.

The court found that the Widji People failed to proceed with their objection application within a reasonable time and did not comply with the court's directions. As a result, the objection application was dismissed. The court held that the delay was unreasonable and had prejudiced the respondent, Berkeley Resources Pty Ltd. The court also found that the Widji People did not act with due diligence in pursuing their objection. The court concluded that the Widji People's failure to comply with the court's directions was a significant factor in dismissing the application.

The court ordered that the objection application be dismissed with costs. The Widji People were also ordered to pay the costs of the respondent, Berkeley Resources Pty Ltd. The court emphasised the importance of parties acting with due diligence and complying with court directions in such matters. The decision highlights the stringent requirements for lodging and proceeding with objection applications under the Native Title Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established