Derrick Smith & Ors on behalf of Gnaala Karla Booja v Carbone Bros. Pty Ltd and Another

[2017] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL

Derrick Smith & Ors on behalf of Gnaala Karla Booja v Carbone Bros. Pty Ltd and Another [2017] NNTTA 49 (15 August 2017)

Application No: WF2017/0002

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

- and -

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

Derrick Smith & Ors on behalf of Gnaala Karla Booja (WC1998/058)

(native title party)

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Carbone Bros. Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS FUTURE ACT DETERMINATION APPLICATION

Tribunal:	President Raelene Webb QC
Place:	Perth
Date:	15 August 2017

Catchwords:

Native title – future act – application for determination in relation to proposed grant of mining lease – uncontested application – where taking order issued and reserve created under the Land Administration Act 1997 (WA) before determination made – no future act – Tribunal not entitled to deal with application – application dismissed under s 148(a)

Legislation:

Native Title Act 1993 (Cth), ss, 31(1)(b), 35, 39(1)(a), 148(a)

Land Administration Act 1997 (WA), ss 41, 170, 177, 178

Representatives of the native title party:

Mr Peter Nettleton, South West Aboriginal Land and Sea Council

Representative of the grantee party: Ms Kirsten Muir-Thompson, Accendo Australia

Representatives of the Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Ms Faye Mitchell, Department of Mines, Industry Regulation and Safety

REASONS FOR DECISION

1. This is a decision to dismiss an application for a future act determination on the basis that, due to circumstances that are outlined in these reasons, there is no ‘future act’ within the meaning of s 233 of the Native Title Act 1993 (Cth) (‘the NTA’).

2. On 6 April 2017, Derrick Smith and others applied to the National Native Title Tribunal under s 35 of the NTA on behalf of the Gnaala Karla Booja native title claim. The application sought a determination in relation to the proposed grant of mining lease M70/1339 to Carbone Bros. Pty Ltd (‘Carbone’) under the Mining Act 1978 (WA) (‘the proposed lease’). The applicant is a registered native title claimant in relation to the land and waters covered by the proposed lease and is therefore a ‘native title party’ for the purposes of the right to negotiate provisions of the NTA.

3. The application was made on the basis that the applicant had reached agreement with Carbone concerning the grant of the proposed lease but were unable to finalise an agreement of the kind mentioned in s 31(1)(b) of the NTA because a member of the applicant was deceased. I appointed myself to constitute the Tribunal for the purposes of conducting an inquiry into the application. At the preliminary conference, parties confirmed that the application was unopposed and that there were no allegations of a failure to negotiate in good faith. I issued directions for parties to provide statements of contentions and documents or evidence relating to, among other things, the effect of the proposed lease on the matters in s 39(1)(a) of the NTA.

4. On 21 July 2017, the solicitor for the State of Western Australia informed the Tribunal that the State had become aware that a reserve had been created over land wholly overlapping the proposed lease. The reserve was created pursuant to a notice of intention to take issued under s 170 of the Land Administration Act 1997 (WA) (‘LAA’). The notice stated the purpose for which the reserve was designated as ‘State Explosive Facility’ and described the ‘interests to be taken’ in the following terms:

   All registered and unregistered interests (including native title rights and interests) in the Land other than the interests of the Crown and those interests granted by Mining Lease 70/1339 and Miscellaneous Licence L70/175 under the Mining Act 1978 (WA).

5. The notice of intention to take was registered with the Registrar of Titles on 10 November 2016. On 7 June 2017, a taking order issued in accordance with ss 177 and 178 of the LAA and an instrument creating the reserve were registered with the Registrar of Titles. A management order made in accordance with s 41 of the LAA was subsequently registered, placing the management of the reserve with the Minister responsible for the administration of the Dangerous Goods Safety Act 2004 (WA). Crown Land Title LR 3025/909 issued the same day.

6. The effect of these transactions is that the land taken by the notice of intention to take is now part of Reserve R52937 and is subject to Management Order N64101. At the relevant date there were no ‘interests granted by Mining Lease 70/1339’. The purported exclusion from the taking order can have no effect in respect of interests that did not exist at the time of taking of the land and creation of the reserve.

7. It is not for this Tribunal to consider these transactions further. For the purposes of the Tribunal and its consideration of the application now before it, registration is conclusive. It follows that there is no future act for the Tribunal to consider as there are no native title rights and interests to be affected.

8. On 28 July 2017, I held a directions hearing and advised parties of my view that the Tribunal is not entitled to deal with the application in light of the matters set out above. No party suggested that the Tribunal should approach the matter differently.

Decision

1. I am satisfied that the Tribunal is not entitled to deal with future act determination application WF2017/0002 relating to Mining Lease 70/1339. Accordingly, the application is dismissed pursuant to s 148(a) of the NTA.

Raelene Webb QC
President
15 August 2017