Leonne Velickovic on behalf of the Widji People/Western Australia/Katherine Ann Madigan and Michael Francis Madigan

[2005] NNTTA 87

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Katherine Ann Madigan and Michael Francis Madigan, [2005] NNTTA 87 (25 November 2005)

Application No:        WO05/190

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 (Widji native title party)

-and-

The State of Western Australia (Government party)

-and-

Katherine Ann Madigan and Michael Francis Madigan (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  25 November 2005

Catchwords:             Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure within a reasonable time to proceed with objection application – failure to comply with directions – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) s 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 party:                   Mr Michael Madigan

Representatives of the       

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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

1. On 9 February 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licence P27/1648 (‘the proposed licence’) to Katherine Ann Madigan and Michael Francis Madigan (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 9 May 2005, Leonne Velickovic on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 - (‘the Widji native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence.

3. The proposed licence comprises an area of 134.75 hectares, 20 kilometres northerly of Kalgoorlie in the City of Kalgoorlie Boulder.  The registered claim of the Central West Goldfields and Widji native title parties overlap the proposed licence by 100%.  The native title claims of the Central West Goldfields (WC99/29) and Maduwongga People (WC99/09) also overlap the proposed licence by 100% but neither group has lodged an objection.  The Maduwongga People’s claim has since been de-registered, depriving these claimants of procedural rights in relation to the proposed licence.

Relevant Facts

1. The Tribunal made directions on 24 May 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 26 September 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.

2. Initially the grantee party did not actively participate in preliminary conferences convened by the Tribunal throughout June and July 2005.  However, the grantee representative, Mr Michael Madigan was in attendance at the first status conference convened on 31 August 2005.  At this hearing Mr Madigan stated that he was unwilling to negotiate with the native title party, and requested that the matter proceed to inquiry.  Mr Madigan also stated that he would rely on the Government party’s contentions and confirmed that the grantee had executed the Goldfields Regional Standard Heritage Agreement (‘RSHA’) which is considered by the Government party to be sufficient indication of the grantee’s positive attitude towards heritage protection.    The representative for the Widji native title party, Mr Jerome Frewen, did not attend this hearing, but was advised of the outcome on the same day by both telephone and email.

3. The Government party has complied with directions and as noted above, the grantee party it intends to rely on the Government party’s contentions.  No submissions from the native title party have been forthcoming to date.

4. On 18 and 25 November 2005 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, for the native title party opposed this application on the basis that because his clients had been extremely busy they were unable to file contentions as required. He sought further time to do so.

5. It has been clear to the Widji native title party since at least 31 August 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.

6. I also note for the record that the Government party has proposed an extra condition to be imposed on the grant of the proposed licence, requiring that the grantee party, if so requested by the Central West Goldfields 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 Central West Goldfields People in respect of the area covered by the proposed licence.  If acted upon, this agreement should assist to ensure that sites of particular significance to the Widji and Central West Goldfields People are protected.

Decision

1. Expedited procedure objection application WO05/190 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
25 November 2005