Minnie van Leeuwen on behalf of the Harris Family/Western Australia/Western Coal Pty Ltd

[2011] NNTTA 177

NATIONAL NATIVE TITLE TRIBUNAL

Minnie van Leeuwen on behalf of the Harris Family/Western Australia/Western Coal Pty Ltd, [2011] NNTTA 177 (29 September 2011)

Application No:                  WO11/171

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Minnie van Leeuwen on behalf of the Harris Family (WC96/41) (native title party)

-and-

The State of Western Australia (Government party)

-and-

Western Coal Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:Hon C J Sumner, Deputy President

Place:Perth

Date of dismissal:              26 September 2011

Date of reasons:                29 September 2011

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – native title not affected – Tribunal has no jurisdiction – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, s 29(2), 30, 75, 148(a), 227

Cases:Daniel v Western Australia [2003] FCA 666

Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96

Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 80 FCR 151

Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316

Representative of the

native title party:               Mr Paul Sheiner, Roe Legal Services

Representative of the        

Government party:            Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the        Mr Hong-Jim Saw

grantee party:  Hetherington Exploration & Mining Title Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 20 October 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licences E70/3933 (the proposed licence) to Western Coal Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 18 February 2011, Minnie van Leeuwen on behalf of the Harris Family – Native Title Claim No. WC96/41, registered from 3 April 1996 (the native title party) made an expedited procedure objection application to the Tribunal.

3. On 28 July 2011, the grantee party advised that it planned to lodge an application with the Department of Mines and Petroleum to have areas of the proposed licence subject to the native title party’s claim excised from the grant. On 10 August 2011, the Government party advised the Tribunal that analysis of the underlying tenure and the overlap between the proposed licence and the native title party’s claim revealed that the areas intended for excise are located outside the boundaries of the native title party’s claim and that, to the extent that the claim overlaps the proposed licence, it only covers land or waters over which native title cannot exist. Accordingly, the Government party advised the Tribunal that, if the objection application was not otherwise resolved prior to the status conference listed for 7 September 2011, it would make an application to have the objection application dismissed pursuant to s 148(a) of the Act. The Government party made the application on 13 September 2011.

4. On 14 September 2011, the Tribunal sought submissions from parties in relation to the State’s application.  On 16 September 2011, the Tribunal sought further submissions from parties in relation to geospatial mapping and analysis prepared by the Tribunal for the purposes of determining the application.  No submissions were received.

Relevant facts

1. The quick appraisal documentation submitted by the Government party in support of its application establishes that the underlying tenure of the proposed licence is predominately freehold land, apart from three crown reserves (CR 28696, CR 32173 and CR 40285, which overlap the proposed licence at 0.2, 0.1 and less than 0.1 per cent respectively) and 13 road reserves, each of which overlaps the proposed licence at less than 0.1 per cent.

2. Tengraph plans submitted by the Government party indicate that CR 28696, CR 32173 and CR 40285 are located to the east of Bussell Highway, whereas the eastern boundary of the native title party’s claim runs parallel to the highway on the western side.  The Tribunal’s geospatial mapping and analysis indicates that the native title party’s claim does not overlap any non-freehold parcels within the area of the proposed licence.

Conclusion

1. Section 75 of the Act provides that a ‘native title party’ may make an application objecting to the inclusion of a statement that an act is an act attracting the expedited procedure. Pursuant to ss 29(2) and 30, the native title party can only be a ‘native title party’ within the meaning of the Act if it is a registered native title body corporate (RNTBC) or registered native title claimant (RNTC) in relation to any of the land or waters that will be affected by the act. Section 227 of the Act provides that an act affects native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

2. It is well established that a grant in fee simple extinguishes native title: Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 at 126. It is equally well established that the constitution of a public road is wholly inconsistent with any continuing right to enjoy native title: Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 80 FCR 151 at 187; Daniel v Western Australia [2003] FCA 666 at [640]; cf Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at 415-416. In the present matter, the areas of the proposed licence for which the native title party is a RNTC are composed entirely of freehold land and road reserves. It is clear that native title cannot exist in those areas. Accordingly, it cannot be said that the native title party is a RNTC in relation to any of the land or waters that will be affected by the proposed licence.

3. It is therefore the view of the Tribunal that, in the circumstances, the native title party is not a ‘native title party’ within the meaning of ss 29(2) and 30 of the Act and lacks standing to proceed with objection application WO11/171. On this basis, I am satisfied that the Tribunal has no jurisdiction to conduct an inquiry into the objection application and it should be dismissed pursuant to s 148(a) of the Act.

Decision

1. Expedited procedure objection application WO11/171 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
29 September 2011