Jidi Jidi Aboriginal Corporation RNTBC v Crest Investment Group 3 Limited

[2021] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Jidi Jidi Aboriginal Corporation RNTBC v Crest Investment Group 3 Limited & Another [2021] NNTTA 14 (15 April 2021)

Application No: WO2021/0615 WO2021/0616

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

- and -

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

Jidi Jidi Aboriginal Corporation RNTBC (WCD2000/001)

(native title party)

- and -

Crest Investment Group 3 Limited

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Glen Kelly, Member
Place:	Perth
Date:	15 April 2021

Catchwords:	Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – licences have been granted – jurisdiction to conduct inquiries - objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) ss 29, 32, 148(a)
Cases:	David Daniel and Others on behalf of the Ngarluma and Yindjibarndi people/Western Australia/Raymond Jt Butler and Stanley A MacDonald [2000] NNTTA 294 (Ngaluma v Butler)
Representatives of the native title party:	Jeremiah Riley, Michelle Riley, & Rose Robinson, Jidi Jidi Aboriginal Corporation RNTBC

Representative of the grantee party: Mr Jacob Loveland, All Mining Legal Pty Ltd

Representative of the Government party: Ms Bethany Conway, Department of Mines, Industry Regulation & Safety

REASONS FOR DETERMINATION

1. The State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licences E52/3774 and E52/3775 (the proposed licences) to Crest Investment Group 3 Limited (Crest Investment). The notices for the proposed licences included a statement that the grant is an act attracting the expedited procedure (see s 32 of the NTA).

2. The notification date of the notice was 13 November 2020 and closing date of the period referred to in s 32(3) was 15 March 2021.

3. The proposed licences overlap the Ngarlawangga People’s and the Nharnuwangga, Wajarri and Ngarla People’s native title determined lands (WCD2016/007 and WCD2000/001, respectively). The Ngarlawangga Aboriginal Corporation RNTBC (NAC) holds the native title on behalf of the Ngarlawangga People and the Jidi Jidi Aboriginal Corporation RNTBC (JJAC) holds the native title for the Nharnuwangga, Wajarri and Ngarla People.

4. On 16 November 2020, NAC lodged objection applications with the National Native Title Tribunal (Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the proposed licences. Those applications were later withdrawn by NAC on 26 February 2021.

5. On 14 March 2021, a day prior to the closing date, JJAC lodged objection applications with the Tribunal in response to the State’s assertion that the expedited procedure applies to the grant of the licences. The applications were accepted on 24 March 2021.

Relevant facts

1. Upon notifying the relevant parties of the lodgement of JJAC’s objection applications on 30 March 2021, Crest Investment advised the Tribunal that the licences had in fact, already been granted.  

2. A search of the State’s publically-accessible Mineral Titles Online portal revealed the proposed licences had been granted on 18 March 2021, just 3 days after the closing date referred to in [2] and prior to the Tribunal’s notification of JJAC’s objection applications.

Jurisdictional issue

1. Section 32(4) of the NTA provides that:

   If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.

2. However, as the act (that is, the granting of the proposed licences) has already occurred, a question arises as to whether the Tribunal has the requisite jurisdiction to conduct these inquiries. This issue is broadly discussed in Ngarluma v Butler from paragraph [6] onwards.

3. In the present matter, I have similarly concluded that there is no basis for the Tribunal proceeding with the inquiry as the licences have been granted. As such, I formed the view that the objection applications lodged by JJAC should be dismissed pursuant to s 148(a) of the NTA.

4. On 8 April 2021, the Tribunal wrote to the parties advising of my views outlined above and of the proposal dismissal on the basis of s 148(a). Parties were invited to provide any comments by close of business on 14 April 2021. Crest Investment advised it had no comments in relation to this issue. No other comments were received.

Determination

1. The objection applications WO2021/0615 and WO2021/0616 in relation to E52/3774 and E52/3775 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Glen Kelly
Member
15 April 2021