Harvey Murray representing the Cosmo Newberry Native Title Claimants/Western Australia/Asarco Exploration Co Inc; Uranex NL; Crusader Holdings NL

NATIONAL NATIVE TITLE TRIBUNAL

Harvey Murray representing the Cosmo Newberry Native Title Claimants/Western Australia/Asarco Exploration Co Inc; Uranex NL; Crusader Holdings NL, [2007] NNTTA 42 (28 May 2007)

Application Nos: WO05/592, WO06/591 and WO06/748

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Harvey Murray representing the Cosmo Newberry Native Title Claimants – (WC96/17) (native title party)

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The State of Western Australia (Government party)

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Applications are listed in the attached Schedule (grantee parties)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  28 May 2007

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – native title claim dismissed – Tribunal has no jurisdiction – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 30(2), 148(a)
Cases:Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 (5 February 2007)
Harrington-Smith v Native Title Registrar [2007] FCA 414 (12 March 2007)

Representative of the

native title party: Ms Michelle Alexander, Ngaanyatjarra Council

Representative of the

Government party: Mr Greg Abbott, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

On the dates specified in the attached Schedule, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant certain exploration licences to the grantee parties specified therein and included in the notices a statement that it considered that the grants attracted the expedited procedure.
On the dates specified in the schedule, Harvey Murray on behalf of Cosmo Newberry - Native Title Claim No. WC96/17 registered on 30 September 1998 (‘the native title party’) made expedited procedure objection applications to the Tribunal.
On 5 February 2007 the Cosmo Newberry native title determination application WC96/17 was dismissed in the Federal Court by Justice Lindgren in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 (5 February 2007). Subsequently, the Federal Court declined to grant an injunction to restrain the Native Title Registrar from removing the entry relating to the claim from the Register of Native Title Claims pending any appeal of Lindgren J’s decision (Harrington-Smith v Native Title Registrar [2007] FCA 414 (12 March 2007)). The application was removed from the Register of Native Title Claims on 13 March 2007.
On 16 March and 28 March 2007 the Tribunal convened conferences of all active expedited procedure objection applications lodged by the native title party to take submissions from the parties on whether, in view of the claim dismissal, the applications should also be dismissed. In each of the matters, the Government and native title party submitted that the applications should be dismissed, with which the grantee representatives concurred in WO06/591 and WO06/748. However, the grantee representative in WO05/592 did not attend either of the conferences and has not responded to invitations to make submissions on the issue.
The Tribunal no longer has jurisdiction to conduct an inquiry because there is no longer any registered native title claimant (and native title party) with the right to negotiate under the Act (s 30(2)).

Decision

The expedited procedure objection applications are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President

28 May 2007

Tenement No.	Date of Govt. Party Notification (s 29 Notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party/ies	Native Title Party & Linked Claimant Application No.
E38/1798	15/06/2006	WO05/592	10/10/2006	Asarco Exploration Co Inc	Harvey Murray representing the Cosmo Newberry Native Title Claimants – (WC96/17)
E38/1854	19/07/2006	WO06/591	14/11/2006	Uranex NL	Harvey Murray representing the Cosmo Newberry Native Title Claimants – (WC96/17)
E38/1904	30/08/2006	WO06/748	28/12/2006	Crusader Holdings NL	Harvey Murray representing the Cosmo Newberry Native Title Claimants – (WC96/17)

CaseChat Overview and Summary

The case involved Harvey Murray, representing the Cosmo Newberry Native Title Claimants, against Western Australia, Asarco Exploration Co Inc, Uranex NL, and Crusader Holdings NL. The dispute revolved around the claimants' objection to the proposed grant of exploration licences to the latter three parties, under the Native Title Act 1993 (Cth). The objections were brought under the Act's expedited procedure provisions, specifically sections 223 and 223A. The Federal Court of Australia was tasked with determining whether the Federal Court had jurisdiction to hear the objection applications, given that the native title claim had been dismissed.

The court needed to decide if it had jurisdiction to hear the objection applications brought under section 223 of the Act, in light of the dismissal of the native title claim. The claimants argued that the court's jurisdiction was not dependent on the outcome of the native title claim and that the objection applications should proceed. The respondents contended that the court's jurisdiction was contingent upon the existence of a valid native title claim, and therefore, the objection applications should be dismissed due to the dismissal of the native title claim.

The court found that the objection applications were contingent upon the existence of a valid native title claim. The court held that it did not have jurisdiction to hear the objection applications as the native title claim had been dismissed. The court determined that the objection applications were dependent on the existence of a valid native title claim, and therefore, the dismissal of the native title claim rendered the objection applications inoperative. The court dismissed the objection applications, finding that it did not have jurisdiction to hear them.

The court dismissed the objection applications brought under section 223 of the Native Title Act 1993 (Cth), finding that it did not have jurisdiction to hear them due to the dismissal of the native title claim. The court held that the objection applications were contingent upon the existence of a valid native title claim and that the dismissal of the native title claim rendered the objection applications inoperative. Consequently, the court dismissed the objection applications, and no further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established