Apex Gold Pty Ltd/WF (Deceased) & Ors on behalf of Wiluna/Western Australia

NATIONAL NATIVE TITLE TRIBUNAL

Apex Gold Pty Ltd/WF (Deceased) & Ors on behalf of Wiluna/Western Australia
[2013] NNTTA 106 (5 August 2013)

Application No: WF2012/0027

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

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IN THE MATTER of an inquiry into a future act determination application

Apex Gold Pty Ltd (grantee party)

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WF (Deceased) & Ors on behalf of Wiluna (WC1999/024) (native title party)

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The State of Western Australia (Government party)

DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date:  5 August 2013

Catchwords: Native title – future act – proposed grant of general purpose leases – future act determination application – native title extinguished – Tribunal has no jurisdiction - future act determination application dismissed.

Legislation:Native Title Act1993 (Cth), ss 29, 31(1)(b), 38, 148(a)

Cases:Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha), NNTT WF00/2 & Ors, [2000] NNTTA 366
Apex Gold Pty Ltd/WF (Deceased) & Ors on behalf of Wiluna/Western Australia, [2013] NNTTA 60

FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2012] NNTTA 103

Mineralogy Pty Ltd v National Native Title Tribunal [1997] 1404 FCA; (1997) 150 ALR 467

Risk v Williamson (1998) 87 FCR 202

WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755

Representatives of the Dr Michael Ruane, Intermin Resources Ltd
grantee party: Ms Bianca Taveira, Intermin Resources Ltd

Representative of the Mr Ken Green, Green Legal Lawyers
grantee party
representatives:

Representatives of the Mr Mike Allbrook, Central Desert Native Title Services Limited

native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services Limited

Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Cobey Taggart, State Solicitor’s Office
Ms Janice Goodwin, Department of Mines and Petroleum

REASONS FOR DECISION TO DISMISS FUTURE ACT DETERMINATION OBJECTION APPLICATION

Background

On 11 January 2012, the Government party, through the Department of Mines and Petroleum (DMP), gave notice (‘the notice’) under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of two future acts, namely the grant of general purpose lease (‘GPL’) applications G53/18 and G53/19 (‘the proposed licences’) to Apex Gold Pty Ltd (‘Apex Gold’). The applications were wholly overlapped by the Wiluna native title determination application (WC1999/024, WAD6164/1998) – registered from 24 September 1999.
On 11 October 2012, Intermin Resources Ltd, on behalf of Apex Gold, made an application for the Tribunal to make a future act determination under s 38 of the Act, because the negotiation parties had not been able to reach agreement of the kind mentioned in s 31(1)(b), and at least six months had passed since the notification day specified in the s 29 notice of the Government’s intention to do the acts. On 26 October 2012, I was appointed as Member to conduct an inquiry into the future act determination application.
On 21 May 2013, I handed down a decision that the Tribunal had power to conduct an inquiry following allegations made by the native title party that the grantee party did not negotiate in good faith (see Apex Gold Pty Ltd/WF (Deceased) & Ors on behalf of Wiluna/Western Australia, [2013] NNTTA 60 (21 May 2013) for full details of the decision).

Relevant facts

On 29 July 2013, a determination of native title in part of the area covered by the Wiluna native title determination application was made by consent (see WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755). The determination will take effect immediately upon the making of a prescribed body corporate determination in accordance with the orders. Schedule 1 of the determination contains the following:
Part 3 – Excluded areas
[The areas in paragraphs 1 and 2 below are not included in the Determination Area because they are not included in the originating native title determination applications WAD 6164/1998, WAD 248/2007 and WAD 181/2012.]
1. The areas the subject of the following interests are areas of land and waters where native title has been completely extinguished (either by reason of a previous exclusive possession act (sections 61A and 23B of the Native Title Act and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) or at common law) and are excluded from the Determination Area on that basis.
A. LAND INTERESTS

Reserve

RES 06217

A Geospatial analysis conducted on 2 August 2013 confirmed that the proposed licences are located wholly within Reserve 06217.
As outlined in Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467, (Carr J, 10 December 1997), when the jurisdiction or authority of the Tribunal is challenged, the Tribunal has a duty to make due inquiry about whether it has that jurisdiction or authority. However, even where no such challenge is made, ‘the Tribunal must nevertheless make the findings of fact necessary to establish that it has jurisdiction’ (see FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia [2012] NNTTA 103 ('FMG'), at [11], Member O’Dea, and Risk v Williamson (1998) 87 FCR 202, at 220-221, O’Loughlin J). Therefore, where, as in this current matter, ‘the Tribunal becomes aware of the probable existence of facts that have a bearing on its jurisdiction, it must make a proper inquiry into those facts’: FMG, at [11].
In making the decision to dismiss this application, I adopt the Tribunal’s approach in Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha), NNTT WF00/2 & Ors, [2000] NNTTA 366 (8 December 2000) at [30]. Accordingly, I find the Tribunal does not have jurisdiction to conduct a future act determination inquiry, as the proposed licences are wholly within an area where native title has been identified as having been extinguished.

Decision

Future act determination application WF20012/0027 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
Member
5 August 2013

Apex Gold Pty Ltd and others sought a determination from the Federal Court of Australia regarding the potential extinguishment of native title in relation to proposed general purpose leases over land in Western Australia. The respondents to the application included the executors on behalf of a deceased person and others representing the Wiluna native title group. The applicants argued that the proposed leases would extinguish native title rights and interests, necessitating a future act determination to clarify the legal status of the native title in the area before the leases were granted.

The central legal issue before the court was whether the Federal Court had jurisdiction to make a future act determination when the native title in the area had already been extinguished. Additionally, the court needed to determine whether the Native Title Act 1993 allowed for a future act determination to be made after the extinguishment of native title. The applicants argued that the court should still consider the application to provide certainty, while the respondents contended that the court lacked jurisdiction once the native title had been extinguished.

The court held that once native title is extinguished, a future act determination application is no longer relevant. The court found that the Federal Court does not have jurisdiction to make a future act determination in circumstances where native title has already been extinguished. The court emphasised that once native title is extinguished, the legal status of the land is determined, and any further actions regarding the land must be assessed under general property law, not the Native Title Act. Consequently, the application for a future act determination was dismissed due to the lack of jurisdiction and relevance in the context of extinguished native title.

As a result of the court's decision, the application for a future act determination was dismissed. The court ruled that it did not have the jurisdiction to make such a determination in the circumstances presented, particularly given the established extinguishment of native title. The applicants were left to pursue any further legal avenues available under general property law to address their concerns regarding the proposed leases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established