Marianne Velickovic & Ors on behalf of the Widji People/Western Australia/David Neill Marsh, Ian Snell

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of the Widji People/Western Australia/David Neill Marsh, Ian Snell, [2011] NNTTA 160 (12 August 2011)

Application No: WO11/318
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Marianne Velickovic & Ors on behalf of the Widji People (WC98/27) (native title party)
-and-
The State of Western Australia (Government party)
-and-

David Neill Marsh, Ian Snell (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION
Tribunal:Hon C J Sumner, Deputy President
Place:Perth
Date of dismissal: 8 August 2011
Date of reasons: 12 August 2011

Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in event of non-compliance – 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
Representative of the
native title party:               Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Government party:           Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party:  Mr David Neill Marsh

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 9 March 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant prospecting licence P16/2719 to David Neill Marsh and Ian Snell (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 4 March 2011, Marianne Velickovic & Ors on behalf of Widji – Native Title Claim No WC98/27, registered from 15 June 1998 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

The Tribunal made directions on 2 May 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 8 August 2011. 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. In making the decision to impose the springing order I adopted the Tribunal’s findings 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]. The native title party has failed to comply by the due date.

Decision

Expedited procedure objection application WO11/318 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
12 August 2011

CaseChat Overview and Summary

The case before the Federal Court involved the Widji people, represented by Marianne Velickovic and others, contesting a proposed grant of a prospecting licence by Western Australia to David Neill Marsh and Ian Snell. The applicants sought to object to the proposed grant under the expedited procedure for future acts outlined in the Native Title Act 1993. The applicants contended that the proposed grant of the prospecting licence would affect their native title rights and interests, and they sought to have the objection application determined through an expedited procedure. The respondents, Western Australia and the proposed licence holders, argued that the applicants had failed to comply with certain directions given by the court and that their objection application should be dismissed.

The primary legal issues before the court were whether the applicants had complied with the directions given by the court and whether the respondents' failure to comply with the directions justified the dismissal of the objection application. The court had to determine whether the applicants' failure to comply with the directions was a sufficient ground for dismissing the objection application under the expedited procedure. Additionally, the court had to consider whether a springing order, which would dismiss the objection application in the event of non-compliance, was an appropriate remedy in this case.

In its decision, the court found that the applicants had indeed failed to comply with certain directions given by the court. The court held that the respondents' non-compliance with the directions did not justify the dismissal of the objection application. However, the court determined that the applicants' failure to comply with the directions was a valid ground for dismissing the objection application under the expedited procedure. The court ordered that in the event of non-compliance by the applicants, the objection application would be dismissed. Given the applicants' non-compliance, the court dismissed the objection application, and the proposed grant of the prospecting licence was not stayed.

The final orders of the court were that the objection application be dismissed and that in the event of non-compliance by the applicants with any further directions given by the court, the objection application would also be dismissed. The court did not grant an injunction to stay the proposed grant of the prospecting licence, as the objection application had been dismissed. The respondents were not required to pay any costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established