Greg Francis & Others on behalf of the Djabera Djabera Native Title Claimants/Emerald Gas Pty Ltd

[2010] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Greg Francis & Others on behalf of the Djabera Djabera Native Title Claimants/Emerald Gas Pty Ltd, [2010] NNTTA 19 (15 February 2010)

Application No:              WF09/31

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

- and -

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

The State of Western Australia (Applicant/Government party)

- and -

Greg Francis and Others on behalf of the Djabera Djabera Native Title Claimants (WC96/99) (native title party)

- and -

Emerald Gas Pty Ltd (grantee party)

DECISION TO DISMISS SECTION 35 APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  15 February 2010

Catchwords:  Native title – future act – proposed grant of petroleum exploration permit – application for determination for the grant of a petroleum exploration permit – application for petroleum exploration permit withdrawn – application dismissed.

Legislation:Native Title Act 1993 (Cth), ss 35, 148(a), s 149

Representatives of the     Mr Matthew Pudovskis, State Solicitor’s Office

Government party:         Ms Maryie Platt, Department of Mines and Petroleum

Representative of the     

native title party:            Mr Robert Powrie, Kimberley Land Council

Representatives of the     Mr Robert Berven, Emerald Gas Pty Ltd
grantee party:                 Mr John Hannaford, Emerald Gas Pty Ltd

REASONS FOR DECISION TO DISMISS SECTION 35 APPLICATION

Background

1. On 27 September 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant petroleum exploration permit 4/05-6 EP (‘the proposed permit’) to Emerald Gas Pty Ltd (‘the grantee party’).

2. The proposed permit comprises an area of 3,048.1 square kilometres.   The proposed permit is in the Beagle Bay area.  The north east corner of the proposed permit is at Lat 16⁰49’54.98” south, Long 123⁰10’04.53” east (GDA94).  From this point the proposed permit extends approximately 37 km south.  The proposed permit then extends in a westerly direction, meeting the Territorial Sea Baseline in the vicinity of Carnot Bay.  The proposed permit then extends in a north-easterly direction, along the Territorial Sea Baseline, to a point in the vicinity of North Head.  From here the proposed permit heads east, returning to the point of commencement.  It is within the Canning Basin and the Shire of Broome.

3. The proposed permit is 42.62 per cent overlapped by the registered claim of the native title party.  No other native title groups overlap the proposed permit.

4. The native title party in respect of these proceedings is Mr Greg Francis, name withheld for cultural reasons, Mr Linos Saaban, name withheld for cultural reasons, Ms Eileen Torres, name withheld for cultural reasons, Mr Owen Torres, name withheld for cultural reasons, Mr Paul Cox and Mr Ramlie Noor on behalf of the Djabera Djabera People (WC96/99).

5. On 18 December 2009, being a date more than six months after the s 29 notice was given, the Government party made an application pursuant to s 35 of the Native Title Act to the Tribunal for a determination as to whether the future act could proceed.

Lack of power (jurisdiction) to conduct an inquiry

1. The State Solicitor’s Office on behalf of the Government party has advised the Tribunal that the application by the grantee party for a grant of the proposed permit has been withdrawn and requested that the application be dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth). Section 148(a) states:

‘The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

(a)        the Tribunal is satisfied that it is not entitled to deal with the application,...’

1. The grantee party’s withdrawal of its application for a grant of the proposed permit means that there no longer exists a future act about which a determination can be made. Therefore, pursuant to s 148(a) of the Native Title Act I am satisfied that the Tribunal no longer has power (jurisdiction) in relation to this s 35 application. I also observe that pursuant to s 149 the Tribunal is empowered to dismiss a s 35 application if the applicant requests, in writing, that the application be dismissed and it is appropriate to do so.

Decision

1. The s 35 application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
15 February 2010