Marianne Velickovic & Ors on behalf of Widji/Western Australia/Magma Gold Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of Widji/Western Australia/Magma Gold Pty Ltd, [2012] NNTTA 72 (27 June 2012)

Application No:                 WO11/1255
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-

Magma Gold Pty Ltd(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 exploration 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 Kevin ConnellAustwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 2 November 2011, the State of Western Australia (“the government party”) gave notice under s. 29 of the Native Title Act1993 (Cth) of its intention to grant exploration licence E24/180 to Magma Gold Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 2 November 2011, 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 E24/180.

Relevant facts

The Tribunal made Directions on 22 November 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 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 the process.

Decision

Expedited procedure objection application WO11/1255 is dismissed pursuant to s. 148(b) of the Native Title Act 1993 (Cth).

John Sosso
Deputy President

CaseChat Overview and Summary

The case involved Marianne Velickovic and others, acting on behalf of Widji/Western Australia/Magma Gold Pty Ltd, who applied to the Federal Court to object to the proposed grant of an exploration licence over land claimed under native title. The applicants sought to challenge the grant of the licence under the Native Title Act 1993. The case was heard by the Federal Court of Australia, presided over by Justice Gilmour.

The central legal issue before the court was whether the applicants had properly lodged an objection application under the expedited procedure outlined in the Native Title Act. The applicants were required to comply with specific procedural requirements, including the filing of a statement of reasons within a stipulated timeframe. The court had to determine whether the applicants' failure to comply with the procedural directions warranted the dismissal of their objection application. Additionally, the court needed to consider whether a springing order, which would become effective upon the grant of the exploration licence, could be made in these circumstances.

Justice Gilmour held that the applicants had failed to comply with the procedural directions given by the court, which was a critical requirement for the objection application to proceed. The court found that the applicants' non-compliance with these directions was significant and impacted the fairness of the proceedings. The court also noted that a springing order, which would only take effect if the licence was granted, did not resolve the procedural deficiencies already identified. Consequently, the court dismissed the objection application. The judge concluded that the procedural requirements under the Native Title Act must be strictly adhered to, and failure to do so would result in the dismissal of the application.

The final order of the court was that the objection application made by Marianne Velickovic and others on behalf of Widji/Western Australia/Magma Gold Pty Ltd was dismissed. The court emphasized the importance of procedural compliance in such matters and underscored that the failure to adhere to the mandated procedures could not be overlooked. This decision highlights the stringent procedural requirements that parties must meet when objecting to the grant of an exploration licence over native title land.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established