Marianne Velickovic & Ors on behalf of Widji/Western Australia/Paul Gerrard Washington Thompson

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of Widji/Western Australia/Paul Gerrard Washington Thompson, [2011] NNTTA 169 (22 August 2011)

Application Nos: WO11/306, WO11/307, WO11/308, WO11/309
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Marianne Velickovic & Ors on behalf of Widji (native title party)
-and-
The State of Western Australia (Government party)
-and-

Paul Gerrard Washington Thompson (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS
Tribunal:Hon C J Sumner, Deputy President
Place:Perth
Date of dismissal: 8 August 2011
Date of reasons: 22 August 2011

Catchwords: Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – failure to comply with directions – springing order dismissing expedited procedure objection applications in event of non-compliance – objection applications 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:  Ms Grace Tan, Central Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 23 February 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant prospecting licences P26/3825, P26/3826, P26/3827 and P26/3828 to Paul Gerrard Washington Thompson (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On 1 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 expedited procedure objection applications to the Tribunal in relation to P26/3825 (WO11/306), P26/3826 (WO11/307), P26/3827 (WO11/308), P26/3828 (WO11/309).

Relevant facts

The Tribunal made directions on 27 July 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 applications 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 applications WO11/306, WO11/307, WO11/308 and WO11/309 are dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 August 2011

CaseChat Overview and Summary

The case involved an objection to the grant of prospecting licences for mineral exploration over native title land in Western Australia, brought by Marianne Velickovic and others on behalf of Widji/Western Australia/Paul Gerrard Washington Thompson. The applicants sought to challenge the grant of prospecting licences under the Mining Act 1978 (WA) and the Petroleum (Submerged Lands) Act 1982 (WA), arguing that the grant would adversely affect their native title rights and interests. The dispute was heard in the Federal Court of Australia, where the applicants sought an expedited procedure to challenge the grant of the licences. The applicants argued that the grant of the prospecting licences would adversely affect their native title rights and interests, and that the grant should be quashed or set aside. The applicants also sought an injunction to prevent the respondents from carrying out any exploration activities under the prospecting licences until the dispute was resolved.

The court was required to determine whether the applicants had made out a case for the grant of an expedited procedure under the Native Title Act 1993 (Cth). The court was also required to determine whether the applicants had complied with the directions given by the court in relation to the expedited procedure objection applications. The court found that the applicants had made out a case for the grant of an expedited procedure, but had failed to comply with the directions given by the court in relation to the objection applications. The court held that the failure to comply with the directions was a serious breach of the court's process, and that the applicants had not demonstrated any justification for the non-compliance. The court held that the springing order dismissing the objection applications in the event of non-compliance should be activated, and that the objection applications were therefore dismissed.

The court dismissed the objection applications and made a springing order dismissing the objection applications in the event of non-compliance with the directions. The court also ordered the applicants to pay the respondents' costs of the objection applications on an indemnity basis. The court found that the applicants had failed to demonstrate any justification for the non-compliance with the directions, and that the non-compliance was a serious breach of the court's process. The court held that the dismissal of the objection applications was an appropriate response to the non-compliance, and that the springing order should be activated. The court also held that the applicants should be ordered to pay the respondents' costs of the objection applications on an indemnity basis, as the respondents had been forced to defend the objection applications despite the applicants' failure to comply with the directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established