Dorothy Bandy and Others on Behalf of the Badimia People (WC96/98)/Western Australia/Donald Sydney Lee and Tony Alvin Leeds

[2000] NNTTA 346

NATIONAL NATIVE TITLE TRIBUNAL

Dorothy Bandy and Others on behalf of the Badimia people (WC96/98)/Western Australia/Donald Sydney Lee and Tony Alvin Leeds, [2000] NNTTA 346 (3 November 2000)

Application No:        WO99/256

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

Dorothy Bandy and Others on behalf of the Badimia people (WC96/98) (native title party)

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The State of Western Australia (Government party)

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Donald Sydney Lee and Tony Alvin Leeds (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:         Member Jennifer Stuckey-Clarke
Place:               Sydney
Date:                3 November 2000

Catchwords:   Native title – future act –proposed grant of an exploration licence – expedited procedure objection application – Government party satisfied that there is no future act because native title is extinguished – Government party makes the grant – Tribunal has no jurisdiction – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(a)

Cases:David Daniel & Ors (Ngarluma and Yindjibarndi people)/Western Australia/Raymond Butler and Stanley McDonald, NNTT WO99/197, Hon CJ Sumner, 11 August 2000

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 11 August 1999, the Government party gave notice of its intention to grant exploration licence 58/238 to Donald Sydney Lee and Tony Alvin Leeds (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.  On 8 September 1999, Dorothy Bandy and others on behalf of the Badimia people, WC96/8, (‘the native title party’) made an expedited procedure objection application to the Tribunal.

On 4 July 2000 Deputy President E.M. Franklyn made directions as to the effect of the decision of the Federal Court in Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 in relation to the tenement the subject of the objection applications. Subsequent to this direction the Crown Solicitor's Office advised the Tribunal on 20 September 2000 that the State of Western Australia will proceed to grant tenements where it is satisfied that native title has been extinguished by the grant of historical mining tenure or by enclosures of pastoral leases. The State further contended that native title has been extinguished as the proposed exploration licence 58/238 is over land the subject of pastoral lease 3114/516 which has been enclosed and advised of its intention to grant the tenement after 14 days had elapsed.

On the 22 September 2000 I made further directions for the State of Western Australia to provide to the Tribunal and the Native Title Party the maps and tenure information on the basis of which the State determined native title has been extinguished.  Upon receiving this information on 2 October, 2000 the Native Title Party made submissions to the Crown Solicitor that the evidence relied upon by the State was inconclusive and the grant of exploration licence 58/238 should be the subject of an inquiry into an expedited procedure objection application before the Tribunal.

On 18 October 2000 the Crown Solicitor’s Officer advised the Tribunal that the Department of Minerals and Energy granted the exploration licence on 17 October 2000.

The issue which arises in these circumstances, namely whether the Tribunal has jurisdiction to maintain the inquiry once the grant has been made, was considered by the Hon. C. J. S Sumner in Daniel & Ors (Ngarluma and Yindjibarndi people)/Western Australia/Raymond Butler and Stanley MacDonald, NNTT WO99/197, Hon CJ Sumner, 11 August 2000.  Deputy President Sumner said:

“First, there is no power given to the Tribunal, by the NTA, to determine that a future act already done or to be done is invalid and even if the Tribunal thought the grant to be invalid, there is no power to prevent the Government party from making a grant nor to prevent the grantee party exercising its rights under it.  Second, if the Government party makes the grant, either the Government or grantee party can withdraw any application they have made for a future act determination under s.35 of the Act (s.35 (2)).  If this happened there is nothing the native title party could do to insist that the Tribunal proceed to conduct an inquiry and make a determination.  Third, if a determination is made that the expedited procedure is not attracted (s.32 (5)) the parties are required to negotiate in good faith in accordance with s.32 (1)(b).  It would be futile to conduct an inquiry which resulted in a requirement for negotiations which presumably the Government and grantee parties would not participate in because the grant had already been made.  These factors reinforce my conclusion that Subdivision P only applies before the future is done by the Government party. [page 11-12]

Decision

The Government party has granted exploration licence 59/908 and accordingly the objection application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth) (as amended).

Ms J. Stuckey-Clarke
Member

3 November 2000