Mervyn Councillor & Others on behalf of the Southern Yamatji People/Enterprise Metals Limited/State of Western Australia

[2020] NNTTA 69

NATIONAL NATIVE TITLE TRIBUNAL

Mervyn Councillor & Others on behalf of the Southern Yamatji People/Enterprise Metals Limited/State of Western Australia [2020] NNTTA 69 (18 November 2020)

Application No: WO2020/0152, WO2020/0153, WO2020/0183

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

- and -

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

Mervyn Councillor & Others on behalf of the Southern Yamatji People (WC2017/002)

(native title party)

- and -

Enterprise Metals Limited

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:	President Hon John Dowsett AM QC
Place:	Brisbane
Date:	18 November 2020

Catchwords:	Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – registration of ILUA – objection applications dismissed
Legislation:	Native Title Act 1993 (Cth) ss 24EB, 29, 30, 32, 148, 237.
Cases	Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42.
Representatives of the native title party:	Ms Sharon Gillon-Grey and Ms Emily Paskov, Yamatji Marlpa Aboriginal Corporation

Representative of the grantee party: Mr Dermott Ryan, Enterprise Metals Limited

Representatives of the Government party: Ms Angela Murphy and Ms Bethany Conway, Department of Mines, Industry Regulation & Safety

REASONS FOR DETERMINATION

Background

1. On 29 January 2020 the State of Western Australia (the “State”) gave notice under s 29 of the Native Title Act 1993 (Cth) (the “Act”) of its intention to grant exploration licences E70/5307 and E70/5308 to Enterprise Metals Limited (the “proposed grantee”). On 12 February 2020 the State also gave notice under s 29 of the Act of its intention to grant exploration licence E59/2393 to the proposed grantee. The notice for each proposed grant included a statement that the State considered that the grants were acts attracting the expedited procedure. That is, the State considered the grants would not have the effects outlined in s 237 of the Act.

2. On 7 February 2020, Mervyn Councillor and others on behalf of the Southern Yamatji People native title claim (WC2017/002; WAD19/2019) (the “Native Title Party”) objected against the inclusion of the expedited procedure statements in relation to proposed tenements E70/5307 and E70/5308. On 18 February 2020 the Native Title Party objected against the inclusion of the expedited procedure statement in relation to E59/2393. Such objections were made pursuant to s 32(3) of the Act. The Native Title Party had status to make these objections as the Native Title Party was a registered native title claimant in respect of their native title determination application at the time the s 29 notices were given.

Relevant Facts

Orders of the Federal Court

1. Solicitors for the Native Title Party, the State and Frederick Taylor and others on behalf of the Yamatji Nation native title claim (amongst others) lodged a Minute of Consent Determination of Native Title (the “Minute”) with the Federal Court which outlined their agreement as to how the various native title claims should be determined, including the creation of an Indigenous Land Use Agreement (the “Yamatji Nation ILUA”) that would apply to those areas where native title is determined to exist.  To give effect to the Minute, on 7 February 2020 Mortimer J of the Federal Court of Australia made two sets of orders.  See Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42. Order 1 from the first set of orders consolidates the Southern Yamatji native title claim (amongst others) with that of the Yamatji Nation native title claim (WAD345/2019). Orders 1 and 2 of the second set of orders make a determination in relation to the native title claims of the parties (including that of the Native Title Party) as set out in the schedule attached to the Minute.

2. The State was required to lodge the Yamatji Nation ILUA with the National Native Title Tribunal (the “Tribunal”) for registration on the Register of Indigenous Land Use Agreements (the “Register”), which it did on 12 March 2020.  The Yamatji Nation ILUA was then in the Tribunal’s notification period from 29 April 2020 to 29 July 2020.  During this period, the Tribunal received no valid objections to the registration of the ILUA.  Subsequent to this period, there were no applications to review the Registrar’s decision to register to the ILUA.

3. The first set of orders made by Mortimer J on 7 February 2020 provide that the consolidation of the Native Title Party’s native title claim (amongst others) with the Yamatji Nation native title claim would take effect upon the State filing a notice that the Yamatji Nation ILUA being Conclusively Registered.  Conclusive Registration is defined as once the Yamatji Nation ILUA has been registered it remains registered:

   (a)At a date that is 60 business days after the date on which a decision is made to register the ILUA, provided that no legal proceedings have been commenced in respect of such registration; or

   (b)Otherwise, at a date that is 40 business days following the exhaustion and determination of the final available legal proceedings in respect of such registration.

4. The Yamatji Nation ILUA was entered on the Register on 30 July 2020.  No legal proceedings were commenced.  Therefore the Yamatji Nation ILUA was conclusively registered on 23 October 2020, which date being 60 business days after it was registered.

5. The State filed a notice with the Federal Court on 26 October 2020 confirming the conclusive registration of the Yamatji Nation ILUA and orders 1 to 3 of the first set of Mortimer J’s orders of 7 February 2020 took effect.

6. Order 3 of the second set of Mortimer J’s orders of 7 February 2020 provides that the determination of native title as set out in orders 1 and 2 are to take effect immediately after the consolidation of the native title claims with the Yamatji Nation claim, as set out in order 1 of Mortimer J’s first set of orders.

7. On 27 October 2020 the Tribunal removed the Native Title Party from the Tribunal’s Register of Native Title Claims as the Native Title Party’s claim was amalgamated with that of the Yamatji Nation pursuant to order 1 of Mortimer J’s first set of orders on 26 October 2020 when the State lodged the notice with the Court.

Objections WO2020/0153 and WO2020/0183

1. On 2 November 2020 the Tribunal’s Geospatial Team prepared overlap analysis reports in relation E70/5307, E70/5308 and E59/2393.  The reports reveal that native title does not exist over E70/5308 and E59/2393, while non-exclusive native title has been found to exist over 0.71 per cent of E70/5307.

2. According to s 30(2) of the Act, a person ceases to be a Native Title Party if the person ceases to be a registered native title claimant. Section 148(a) of the Act empowers the Tribunal to dismiss an application if at any stage of an inquiry it is satisfied it is not entitled to deal with the application.

3. Native title has been determined not to exist over the areas of E70/5308 and E59/2393, which correspond to expedited procedure objection applications WO2020/0153 and WO2020/0183 respectively.  There is no registered Native Title Party in relation to these future acts.  On this basis, I am satisfied that the Tribunal no longer has the power to decide the expedited procedure objections in WO2020/0153 and WO2020/0183.

Objection WO2020/0152

1. As I have observed, the Yamatji Nation ILUA was conclusively registered on 23 October 2020.  The State filed a notice with the Court confirming this on 26 October 2020.  The filing of this notice triggered the consolidation of the Native Title Party’s native title claim with that of the Yamatji Nation claim and the subsequent native title determination.

2. The report prepared by the Tribunal’s Geospatial Team as to the effects of the Yamatji Nation native title determination revealed that non-exclusive native title was found to exist over 0.71 per cent of E70/2307, over which the objection in WO2020/0152 relates.  It is necessary to consider the terms of the Yamatji Nation ILUA to understand the effect that agreement has on E70/2307.

3. Part 7 of the Yamatji Nation ILUA deals with resolution of Native Title in the Agreement Area, which is defined in Schedule 1 to the Yamatji Nation ILUA to comprise all those areas which comprise the Yamatji Nation native title determination area, including that part of E70/2307 where non-exclusive native title has been found to exist.  Clause 7.3 provides that from the Conclusive Registration Date:

   (a)the parties to the ILUA consent to the grant of future acts by the State in the native title area;

   (b)the Right to Negotiate under the Act does not apply to future acts carried out in the native title areas of the ILUA pursuant to s 24EB of the Act; and

   (c)no other procedural requirements in Part 2 Division 3 of the Act apply to any future acts carried out in the native title areas.

4. The 0.71 per cent of E70/2307 where non-exclusive native title has been found to exist is subject to the terms of the Yamatji Nation ILUA, which excludes the operation of the right to negotiate provisions of the Act. The Court determined that native title does not exist over the remaining 99.29 per cent of E70/2307. In light of these facts, I am satisfied that the Tribunal no longer has the power to decide the expedited procedure objection in WO2020/0152.

Determination

1. Expedited procedure objection applications WO2020/0152, WO2020/0153 and WO2020/0183 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon John Dowsett AM QC
President
18 November 2020