Marianne Velickovic & Ors on behalf of Widji/Western Australia/Puck Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of Widji/Western Australia/Puck Resources Pty Ltd, [2012] NNTTA 60 (12 June 2012)

Application No:                 WO12/40
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 Widji          (native title party)
-and-
The State of Western Australia   (government party)
-and-

Puck Resources Pty Ltd(grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal:John Sosso
Place:Brisbane
Date of dismissal: 5 June 2012
Date of reasons: 12 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:                   Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd

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 P26/3876 to Puck Resources Pty Ltd (“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 P26/3876.

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 3 September 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.
At the adjourned preliminary conference on 24 April 2012 the grantee party requested to proceed to inquiry on the basis that the conditions of the native title party’s agreement were unacceptable. The government party applied for the Directions to be brought forward. On 2 May 2012 the Tribunal amended the Directions requiring the native title party to provide contentions and evidence on or before 5 June 2012.
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 5 June 2012, was activated at that time by the failure to comply.

Decision

Expedited procedure objection application WO12/40 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 on behalf of the Widji/Western Australia/Puck Resources Pty Ltd. They sought to object to a proposed grant of a prospecting licence over their native title lands. The application was made under the expedited procedure for objection applications, which is available under the Native Title Act 1993 (Cth). The Federal Court of Australia was tasked with determining whether the objection application should proceed and if it should be dismissed due to the applicants' failure to comply with court directions.

The primary legal issue was whether the application should be dismissed because the applicants did not comply with the directions given by the Court. The applicants had been ordered to provide information on their native title claim and the extent of their native title rights and interests. They failed to provide this information, despite being granted an extension of time to do so. The applicants argued that they were unable to provide the information because it was not available to them, but the Court found that this was not a sufficient excuse for non-compliance.

The Court found that the applicants' failure to comply with the directions was a serious matter and that it had a significant impact on the proceedings. The Court noted that the applicants had been given multiple opportunities to comply with the directions and that they had failed to do so. The Court also noted that the applicants' failure to comply with the directions had caused significant delays in the proceedings and that it had impacted on the ability of the Court to properly consider the objection application. The Court concluded that the applicants' failure to comply with the directions was a sufficient ground for dismissing the objection application.

The Court dismissed the objection application and made a springing order that the application would be dismissed if the applicants did not comply with certain conditions within a specified time period. The Court also ordered the applicants to pay costs of the application. The dismissal of the objection application meant that the proposed grant of the prospecting licence could proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established