Kevin Cosmos & Others on behalf of Yaburara & Mardudhunera People/Western Australia/Geotech International Pty Ltd
[2013] NNTTA 14
•11 February 2013
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Cosmos & Others on behalf of Yaburara & Mardudhunera People/Western Australia/Geotech International Pty Ltd, [2013] NNTTA 14 (11 February 2013)
Application No: WO2012/0664
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Cosmos & Others on behalf of Yaburara (native title party)
& Mardudhunera People
-and-
The State of Western Australia (Government party)
-and-
Geotech International Pty Ltd (grantee party)
DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: Daniel O’Dea
Place: Perth
Date: 11 February 2013
Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection application – no jurisdiction – expedited procedure objection application dismissed.
Legislation:Native Title Act1993 (Cth), ss 26, 29, 148(a)
Land Act 1933 (WA), ss 31, 33
Racial Discrimination Act 1975 (Cth)
Cases: Western Australia v Ward (2002) 191 ALR 1
Representatives
Native title party: Ms Aimee Hackett, Corser & Corser
Government party: Mr Rod Wahl, State Solicitor’s Office
Mr Clyde Lannan, Department of Mines and Petroleum
Grantee party: Mr Paul Askins, Geotech International Pty Ltd
REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION
Background
On 7 March 2012, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2080 (‘the proposed licence’) to Geotech International Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 5 July 2012, Kevin Cosmos & Ors on behalf of Yaburara & Mardudhunera People (WC96/89 – registered from 1 August 1996) (‘the native title party’) lodged an expedited procedure objection application (Form 4) with the Tribunal in respect of the proposed licence (designated by the Tribunal as WO2012/0664).
The proposed licence comprises 120 graticular blocks (approximately 383.6541 square kilometres) situated 77 kilometres northwest of Pannawonica in the Shire of Roebourne, and is situated largely over water off the coast of Mardie. The proposed licence is wholly overlapped by the registered native title claim of the Yaburara & Mardudhunera (WC96/89 - registered from 1 August 1996).
The proposed licence is also overlapped by 39.49 per cent by the registered native title claim of the Kuruma Marthudunera (WC99/12), on whose behalf an objection was lodged on 2 July 2012 (designated by the Tribunal as WO2012/0632). On 26 October 2012, the objection was withdrawn without an agreement being reached.
On 13 September 2012, President Graeme Neate was appointed Member for the purposes of conducting an inquiry into the application. In accordance with standard practice, the Tribunal gave directions for the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions set on 13 September 2012 allowed for State compliance up to and including 29 October 2012, with other parties’ compliance to follow.
At the first Status Conference on 3 October 2012, the native title party advised that it wished to proceed to inquiry as the grantee party would not accept the heritage agreement proposed by the native title party.
The Department of Mines and Petroleum (DMP) provided the State’s evidence on 29 October 2012.
On 5 November 2012 the native title party requested a further 7 days in which to lodge the native title party’s contentions. On 7 November 2012, the President set the compliance dates of 12 November 2012 for the native title party, 19 November 2012 for the grantee party and 26 November 2012 for the State’s contentions.
On 12 November 2012 the native title party requested a further extension of compliance dates in which to lodge the native title party’s contentions. On 26 November 2012, the President set the compliance dates of 26 November 2012 for the native title party, 3 December 2012 for the grantee party and 10 December 2012 for the State’s contentions.
On 26 November 2012, the native title party provided its contentions to the Tribunal.
On 3 December 2012 the grantee party provided its contentions to the Tribunal.
On 29 November 2012, the State requested an extension of compliance dates for it to provide contentions by the State Solicitor’s Office. On 7 December 2012, the President set the compliance date of 19 December 2012 for the State.
On 20 December 2012 the State provided its contentions.
On 19 December 2012, I was appointed by the President of the Tribunal as the Member to conduct the inquiry in this matter.
At the Listing Hearing on 10 January 2013 all parties agreed that the inquiry in this matter could proceed ‘on the papers’.
The inquiry proceeded to be determined ‘on the papers’ as per s 151 of the Act, and I am satisfied that it can be adequately determined in this way.
The Tribunal provided a map to all parties on 23 January 2013 on which it intended to rely, and no party made any submissions or contentions in relation to that map.
Relevant facts
Islands within the Proposed Licence
Upon inspection of the Tribunal’s map, I observed that the majority of the proposed licence was over sea, with only four very small portions of the mainland falling within the proposed licence. I also observed that seven islands of the Great Sandy Island Nature Reserve fall within the proposed licence (‘the Islands’). Examination of the Tengraph Quick Appraisal provided by the Department of Mines and Petroleum revealed that the Islands are a Class B Flora and Fauna Conservation (CR 33831). This raised the question for me as to whether native title had been extinguished over the Islands and I felt that further investigation was warranted.
The Tribunal’s investigations revealed that six of the islands (Angle Island, Middle Passage Island, Long Island, Round Island, Sholl Island and Mardie Island) were part of a Class B Nature Reserve created pursuant to section 31 of the Land Act 1933 (WA) and designated Reserve 33831.
Fortescue Island is the remaining Island within the proposed licence and was originally created as a Class B Reserve under section 31 of the Land Act 1933 (WA) and designated Reserve 33830, but was later merged into Reserve 33831. The creation of both Reserve 33830 and Reserve 33831 was gazetted on 23 January 1976. Both Reserves 33830 and 33831 were vested in the Western Australian Wild Life Authority under section 33 of the Land Act 1933 (WA) and this was gazetted on 23 January 1976.
The impact of the creation of reserves and their vesting on native title was addressed by the High Court in Western Australia v Ward (2002) 191 ALR 1, Gleeson CJ, Gaudron, Gummow and Hayne JJ. Their Honours determined at [219] that the act of creating reserves under section 31 of the Land Act 1933 did not, in itself, extinguish native title. Their Honours went on to address the impact of the vesting of such a reserve under section 33 of the Land Act 1933, where they said at [249]:
It follows from what has been said earlier that, because the vesting under s33 of the Land Act 1933 of a reserve in a body or person vests the legal estate in fee simple to the land in that body or person and obliges the body or person to hold the land on trust for the stated purposes, rights are vested in that body or person which are inconsistent with the continued existence of any native title rights or interests to the land. Accordingly, if, pursuant to the Land Act 1933, a reserve was vested in a body or person before the RDA [Racial Discrimination Act1975 (Cth)] came into operation, native title was extinguished by that vesting.
Their Honours then went on to say at [253] that vesting a reserve under section 33 of the Land Act 1933 after enactment of the Racial Discrimination Act 1975 would be valid, but the Racial Discrimination Act 1975 would supply to native title holders a right of compensation for that which is lost upon vesting.
It becomes clear that upon vesting of Reserves 33830 and 33831 in the Western Australian Wild Life Authority under section 33 of the Land Act 1933, the native title rights and interests in the Islands were extinguished. Therefore, the Tribunal has no jurisdiction to make a determination in relation to the Islands.
Jurisdiction over Sea
As I have stated, the majority of the proposed licence lies over the sea.
Only those future acts which fall under Part 2 Division 3 Subdivision P of the Act – the Right to Negotiate, come within the Tribunal’s jurisdiction.
Section 26 of the Act discusses when Part 2 Division 3 Subdivision P of the Act applies. Section 26(3) states:
“Sea and intertidal zone excluded
(3)This Subdivision only applies to the act to the extent that the act relates to a place that is on the landward side of the mean high-water mark of the sea. A reference to an act to which this Subdivision applies is to be read as referring to the act to that extent only.”
It is clear from section 26(3) of the Act that Subdivision P does not apply to the sea areas of the proposed licence and therefore the expedited procedure cannot apply to the sea areas of the proposed licence.
Further, the Tribunal has no jurisdiction to make a determination in relation to the sea parts of the proposed licence.
Jurisdiction over the remaining portions of the mainland within the proposed licence
The only portions of the proposed licence that the Tribunal could possibly have jurisdiction over were four small portions of the mainland that fell within the proposed licence. Pursuant to section 26(3) of the Act, the relevant question was whether they were on the landward side of the mean high-water mark of the sea. If they were, then the Tribunal would have jurisdiction to make a determination in relation to those small portions of land. If not, then the Tribunal would lack jurisdiction over any part of the proposed licence.
On 1 February 2013 the Tribunal wrote to the parties, advising the Tribunal’s view that native title rights and interests in the Islands had been extinguished and that the Tribunal lacked jurisdiction in relation to those parts of the proposed licence that were over the sea. The Tribunal requested the parties provide submissions by close of business on 5 February 2013 as to whether any part of the four portions of mainland that fall within the proposed licence lie on the landward side of the mean high-water mark of the sea.
On 5 February 2013 the Government party provided a map showing the proposed licence and where it contended the mean high-water mark of the sea lay in relation to the portions of the mainland falling within the proposed licence. The Government party advised that this information was sourced from Landgate and contended that all four of the portions of land lay on the landward side of the mean high-water mark of the sea.
On the same date the native title party advised that it agreed with the contentions of the Government party in relation to the Tribunal’s query. The native title party also provided a map of the tenement and contended that young members of the native title party go crabbing within the four portions of land in question.
Taking into account the submissions of the Government party and the native title party, I arrived at the conclusion that I do have jurisdiction to make a determination in relation to the four portions of land.
Withdrawal of the grantee party’s application for grant of the proposed licence
On 7 February 2013, the grantee party sent an email to the Tribunal advising that it had, that morning, withdrawn its application for the grant of the proposed licence. The grantee party advised that while it could excise the four portions of land from the proposed licence as they are not necessary for the grantee party’s exploration plans, commercial reasons necessitated that the grantee party withdraw their whole application for grant of the proposed licence.
The grantee party went on to advise that had it been advised by the Government party at the time it applied for the proposed licence that native title had been extinguished over the Islands and that there was no right to negotiate over the sea area, then the grantee party would have sought to proceed with the grant of only those parts of the proposed licence that were commercially important (ie not the four portions of land). The grantee party feels this would have saved it much time and delay, which had come at the expense of an important commercial venture opportunity in relation to the proposed licence.
On 8 February 2013, the Government party confirmed by correspondence to the Tribunal that the grantee party had withdrawn its application for the proposed licence and as a result the matter was discontinued.
As the grantee party has withdrawn its application for the proposed tenement, there is no relevant future act within the meaning of s 233 of the Act and the Tribunal lacks jurisdiction to make a determination in this matter.
It is unfortunate that these issues were not identified at the onset of the Native Title Act process. If these issues had been identified by the Government party prior to it giving notification of the proposed licence under section 29 of the Act, the parties and the Tribunal would not have expended the considerable resources they have to date to arrive at this point. The Tribunal has recently implemented procedures by which it will scrutinise objection applications as soon as its technical resources will permit. A similar initiative inside the Department of Mines and Petroleum should be instigated. Further, the Government party might consider implementing procedures that will alert it to issues of extinguishment or non-application of the Right to Negotiate provisions of the Act during the course of the preparation of its evidence and contentions.
Decision
Expedited procedure objection application WO2012/0664 is dismissed pursuant to s 148(a) of the Act.
Daniel O’Dea
Member
11 February 2013
30
1
0