Charlie Lapthorne & Others on behalf of the Thudgari People/Western Australia/Northern Phosphate Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Charlie Lapthorne & Others on behalf of the Thudgari People/Western Australia/Northern Phosphate Ltd, [2010] NNTTA 6 (19 January 2010)

Application No: WO09/201

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Charlie Lapthorne & Others on behalf of the Thudgari People – (WC97/95) (native title party)

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The State of Western Australia (Government party)

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Northern Phosphate Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  19 January 2010

Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application –portion of registered native title claim overlapping area of exploration licence discontinued – exploration licence granted – Tribunal has no jurisdiction – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 30(2), 148(a)
Cases:David Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (11 August 2000), Hon C J Sumner
Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997), Hon C J Sumner

Representative of the

native title party: Mr Vaughan Lane

Representatives of the Mr Greg Abbott, Department of Mines and Petroleum

Government party: Ms Claire Malavaux, Department of Mines and Petroleum

Representative of the

grantee party: Mr Marcus Walter, M & M Walter Consulting

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 3 December 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E09/1554 (‘the proposed licences’) to Northern Phosphate Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 3 April 2009, Charlie Lapthorne & Others on behalf of the Thudgari People (WC97/95 – registered from 18 November 1997) (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 18 November 2009 the Thudgari native title determination application WC97/95 was determined by consent in the Federal Court by Justice Barker in Thudgari People v State of Western Australia [2009] FCA 1334 (18 November 2009). By consent, it was further agreed that the portion of the Thudgari claim around Middalya Pastoral Station should be discontinued. As a consequence, no native title determination was made in relation to the westernmost area of land previously claimed by Thudgari, a portion of which overlaps the proposed licence and there is now no registered native title claim in relation to it.
On 14 January 2010, the Government party advised that the proposed licence had been granted. The Tribunal has decided that it does not have jurisdiction to conduct an inquiry once a grant has been made (David Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (11 August 2000), Hon C J Sumner). Further, in this case the grant was not a future act as there is no longer any registered native title claimant (and native title party) with the right to negotiate under the Act (s 30(2)) (Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997), Hon C J Sumner).

Decision

Expedited procedure objection application WO09/201 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President

19 January 2010

CaseChat Overview and Summary

The case before the court involved the Thudgari People, represented by Charlie Lapthorne and others, and the State of Western Australia, along with Northern Phosphate Limited. The dispute arose from an objection to the proposed grant of an exploration licence over land that overlapped with a portion of the registered native title claim. The application was made under the expedited procedure outlined in the Native Title Act 1993. The land in question had been subject to a previous exploration licence, which had been discontinued. The Thudgari People contested the grant of the new exploration licence, arguing that it would interfere with their native title rights. The court was required to determine whether the Federal Court had jurisdiction to hear the objection application, given that the exploration licence had already been granted and the area of overlap had been discontinued from the native title claim.

The primary legal issue was whether the court had jurisdiction to hear the objection application, considering the overlap area had been removed from the native title claim. The court examined the provisions of the Native Title Act and considered the procedural history of the native title claim and the exploration licence. The Thudgari People argued that the court should still have jurisdiction as the exploration licence had not been fully granted over the entirety of the land initially covered by the exploration licence. The court needed to determine if the jurisdictional criteria for an objection application were met, particularly in light of the changes to the native title claim and the status of the exploration licence.

The court held that the exploration licence had been fully granted over the land, and the overlap area had been discontinued from the native title claim. Therefore, the court found that it did not have jurisdiction to hear the objection application. The court reasoned that since the exploration licence had been granted, and the overlap area had been removed from the native title claim, the application did not meet the jurisdictional criteria for an objection application. The court dismissed the application, concluding that the objection application was no longer tenable due to the changes in the status of the land and the native title claim.

The court's decision resulted in the dismissal of the objection application. The court determined that it did not have jurisdiction to hear the application as the exploration licence had been granted and the overlap area had been discontinued from the native title claim. The court's ruling clarified the jurisdictional boundaries in cases involving native title objections to exploration licences, particularly where changes to the native title claim and the status of the exploration licence have occurred.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established