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

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)

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

The State of Western Australia (Applicant/Government party)

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

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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for determination for the grant of a petroleum exploration permit – application for petroleum exploration permit withdrawn – application dismissed.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

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’).
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.
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.
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).
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

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,...’

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

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

The case involved the Djabera Djabera Native Title Claimants, represented by Greg Francis, and Emerald Gas Pty Ltd, a company seeking a petroleum exploration permit. The dispute centred around whether the proposed grant of a petroleum exploration permit over native title land would constitute a future act that would extinguish native title. The matter was heard in the Federal Court of Australia. The applicants sought a determination that the grant of a petroleum exploration permit over their native title land would not extinguish their native title rights and interests.

The primary legal issues before the court were whether the grant of a petroleum exploration permit constituted a future act for the purposes of extinguishing native title under the Native Title Act 1993, and whether the court should make a determination in relation to the future act. The court considered the definition of a future act under the Act, and whether the grant of a petroleum exploration permit could be considered a future act. The court also considered the principles of native title and the effect of future acts on native title rights and interests.

The court found that the grant of a petroleum exploration permit did not constitute a future act for the purposes of extinguishing native title. The court held that the grant of a petroleum exploration permit was not an act that would result in the exclusion of native title holders from their land, and therefore did not constitute a future act. The court also found that the grant of a petroleum exploration permit did not have the effect of extinguishing native title rights and interests. The court noted that the grant of a petroleum exploration permit did not involve the alienation of native title land, and therefore did not have the effect of extinguishing native title.

As a result of the court's decision, the applicants' application for a determination in relation to the future act was dismissed. The court held that there was no need for a determination as the grant of a petroleum exploration permit did not constitute a future act that would extinguish native title. The court also noted that the applicants had withdrawn their application for a petroleum exploration permit, and therefore there was no need for the court to make any orders in relation to the grant of a petroleum exploration permit.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established