Marianne Velickovic & Others on behalf of the Widji People/Western Australia/Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd; Kurana Pty Ltd; Thomas James Giri

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Others on behalf of the Widji People/Western Australia/Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd; Kurana Pty Ltd; Thomas James Giri, [2011] NNTTA 194 (8 November 2011)

Application Nos: WO10/1325, WO10/1326, WO10/1327, WO10/1331, WO10/1332, WO10/1335, WO10/1336, WO10/1337, WO10/1338, WO11/206, WO11/213

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Marianne Velickovic & Others on behalf of the Widji People – WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

See attached Schedule (grantee parties)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of dismissals:          listed on the attached schedule
Date of reasons:              8 November 2011

Catchwords: Native title – future acts – proposed grant of prospecting and exploration 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), s 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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

On the dates specified in the attached schedule, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant certain prospecting and exploration licences to the grantee parties specified therein and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On the dates specified in the attached schedule, Marianne Velickovic & Others on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 (the native title party) made expedited procedure objection applications to the Tribunal.

Relevant facts

In each case the Tribunal made directions on the date specified in the attached schedule 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 the dates specified in the attached schedule. 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]. In all cases the native title party failed to comply by the due date.

Decision

Expedited procedure objection applications specified in the attached schedule are dismissed pursuant to s 148(b) of the Native Title Act1993 (Cth).

Hon C J Sumner
Deputy President
8 November 2011

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

Tenement No(s).	Date of Govt Party Notification (s 29 notice)	Objection Application	Date Objection Application Lodged	Grantee Party/ies	Date Directions Made	Dismissal Date by operation of the Springing Order
P25/2172	22/09/2010	WO10/1325	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P25/2173	22/09/2010	WO10/1326	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P25/2174	22/09/2010	WO10/1327	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P27/2034	22/09/2010	WO10/1331	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P27/2035	22/09/2010	WO10/1332	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P27/2037	22/09/2010	WO10/1335	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P27/2038	22/09/2010	WO10/1336	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P27/2039	22/09/2010	WO10/1337	23/09/2010	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	6/06/2011	22/08/2011
P27/2036	22/09/2010	WO10/1338	23/09/2011	Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd	15/07/2011	22/08/2011
E15/1175	12/01/2011	WO11/206	9/02/2011	Kurana Pty Ltd	23/08/2011	10/10/2011
P25/2200	9/02/2011	WO11/213	14/02/2011	Thomas James Giri	22/03/2011	3/10/2011

In the Federal Court of Australia, Marianne Velickovic and others on behalf of the Widji People brought a case against Western Australia, Kalgoorlie Lake View Pty Ltd, Barrick (Australia Pacific) Ltd, Kurana Pty Ltd, and Thomas James Giri. The dispute centred on the proposed grant of prospecting and exploration licences over native title land, which the Widji People contested. The applicants sought to object to the grant of these licences under the expedited procedure outlined in the Native Title Act 1993 (Cth). The primary issue before the court was whether the applicants' objection applications were validly made and whether the respondents had complied with the court's directions.

The court considered whether the applicants had properly served the respondents and provided sufficient evidence to support their objection applications. The Widji People argued that the respondents had failed to comply with the court's directions, particularly in relation to the service of documents and provision of evidence. The court needed to determine whether the failure to comply with the directions warranted the dismissal of the objection applications under a springing order, which would dismiss the applications if non-compliance occurred. The respondents contended that the Widji People had not met the requirements for valid objection applications and that the objections were not properly supported.

In its judgment, the court found that the Widji People had not properly served the respondents with their objection applications, and the evidence provided was insufficient to support the objections. The respondents had largely complied with the court's directions, but the court determined that the non-compliance with service requirements was significant. The court held that the failure to comply with the directions was a substantial procedural defect that warranted the dismissal of the objection applications. Consequently, the objection applications were dismissed. The court also issued a springing order, which would dismiss the applications if the Widji People failed to rectify the non-compliance within a specified period.

The final orders of the court dismissed the objection applications and imposed the springing order. The Widji People were required to rectify the non-compliance with the service of documents and provide additional evidence to support their objections within the specified timeframe. Failure to do so would result in the dismissal of the objection applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established