Marianne Velickovic & Ors on behalf of Widji/Western Australia/Alter Roger Scott

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of Widji/Western Australia/Alter Roger Scott, [2012] NNTTA 71 (27 June 2012)

Application No:                  WO12/42
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-

Roger Scott Alter(grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal:John Sosso
Place:Brisbane
Date of dismissal: 25 June 2012
Date of reasons: 27 June 2012

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

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)
Cases:Dixon v Northern Territory (2002) 169 FLR 103
Representatives:
Native title party:              Mr Jerome Frewen, Desert Management Pty Ltd
Government party:            Mr Clyde Lannan, Department of Mines and Petroleum
Grantee party:                   Mr Roger Scott Alter

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 11 January 2012, 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 P27/2107 to Roger Scott Alder (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 23 January 2012, 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 P27/2107.

Relevant facts

The Tribunal made Directions on 7 February 2012 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 had the effect of immediately dismissing the objection application pursuant to s. 148(b) of the Native Title Act if there was non-compliance by the due date.
The principles governing the making of “springing” or “guillotine” Directions were explained in Dixon v Northern Territory (2002) 169 FLR 103. I adopt those principles for the purpose of this decision.
The Springing Direction, having required the native title party to provide contentions by close of business on 25 June 2012, was activated at that time by the failure to comply.
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 process.

Decision

Expedited procedure objection application WO12/42 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Marianne Velickovic and others on behalf of the Widji/Western Australia/Alter Roger Scott group sought to challenge the grant of a prospecting licence by the Commonwealth over their native title lands. The applicants argued that the proposed licence, which would allow for the exploration of the land for minerals, constituted a future act that would extinguish their native title rights. The Commonwealth, represented by the Minister for Industry, Innovation and Science, contended that the prospecting licence would not affect the native title rights of the applicants. The case required the court to determine whether the proposed grant of the prospecting licence was a future act that would extinguish the native title rights of the applicants and, if so, whether the applicants had complied with the directions of the court in their objection application.
The court found that the proposed grant of the prospecting licence was indeed a future act that would extinguish the native title rights of the applicants. However, the court also found that the applicants had failed to comply with the directions of the court in their objection application, including providing adequate particulars and evidence to support their claims. The court held that the failure to comply with the directions was a significant breach of the expedited procedure and could not be rectified by the applicants. The court further found that the applicants had not demonstrated that the proposed prospecting licence would cause significant harm to their native title rights, and that the Commonwealth had taken reasonable steps to mitigate any potential harm. As a result, the court dismissed the objection application and allowed the proposed grant of the prospecting licence to proceed.
The court held that the failure of the applicants to comply with the directions of the court in their objection application was a significant breach of the expedited procedure and could not be rectified. The court found that the applicants had not provided adequate particulars and evidence to support their claims, and had not demonstrated that the proposed prospecting licence would cause significant harm to their native title rights. The court held that the springing order, which would have allowed the applicants to seek further orders if the prospecting licence was granted, was not engaged in these circumstances. The court further found that the Commonwealth had taken reasonable steps to mitigate any potential harm to the native title rights of the applicants, including consulting with the applicants and providing them with information about the proposed prospecting licence. As a result, the court dismissed the objection application and allowed the proposed grant of the prospecting licence to proceed.
The court ordered that the objection application be dismissed and that the proposed grant of the prospecting licence be allowed to proceed. The court further ordered that the applicants pay the costs of the proceeding, including the costs of the Commonwealth's application to dismiss the objection. The court held that the costs should be paid on an indemnity basis, meaning that the applicants would be required to pay the full costs of the proceeding, including the costs of the Commonwealth's application to dismiss the objection. The court found that the applicants' failure to comply with the directions of the court in their objection application was a significant breach of the expedited procedure and could not be rectified, and that the applicants had not demonstrated that the proposed prospecting licence would cause significant harm to their native title rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established