Monty Walgar on Behalf of Walgar (WC98/66)/Western Australia/Horizon Mining NL

[2000] NNTTA 364

NATIONAL NATIVE TITLE TRIBUNAL

Monty Walgar on behalf of Walgar (WC98/66)/Western Australia/Horizon Mining NL, [2000] NNTTA 364 (6 December 2000)

Application No:        WO99/351

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

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

Monty Walgar on behalf of Walgar (WC98/66) (native title party)

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The State of Western Australia (Government party)

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Horizon Mining NL (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:         Member Jennifer Stuckey-Clarke
Place:               Sydney
Date:                6 December 2000

Catchwords:   Native title – future act –proposed grant of an exploration licence – expedited procedure objection application – Government party satisfied that there is no future act because native title is extinguished – Government party makes the grant – Tribunal has no jurisdiction – objection application dismissed.

Legislation:Native Title Act 1993 (Cth) s 148(a)

Cases:David Daniel & Ors (Ngarluma and Yindjibarndi people)/Western Australia/Raymond Butler and Stanley McDonald, NNTT WO99/197, Hon CJ Sumner, 11 August 2000

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 14 July 1999, the Government party gave notice of its intention to grant exploration licence 20/432 to Horizon Mining NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.  On 1 November 1999, Monty Walgar on behalf of Walgar, WC98/66, (‘the native title party’) made an expedited procedure objection application to the Tribunal.

On 25 August 2000 I made directions as to the effect of the decision of the Federal Court in Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 in relation to the tenement the subject of the objection applications. Subsequent to this direction the Crown Solicitor's Office advised the Tribunal on 11October 2000 that the State of Western Australia would proceed to grant tenements where it is satisfied that native title has been extinguished by the grant of historical mining tenure or by enclosures of pastoral leases. The State further contended that native title had been extinguished as the proposed exploration licence 20/238 is over land the subject of pastoral leases 3114/0600 (Austin Downs), 3114/0776 (Coodardy) and 3114/1200 (Karbar), which have been enclosed, and advised of its intention to grant the tenement after 14 days had elapsed.

On 6 October 2000 I made further directions that the State of Western Australia provide to the Tribunal and the Native Title Party the maps and tenure information on the basis of which the State determined native title has been extinguished.  Upon receiving this information, on 12 October, 2000 the Native Title Party made submissions to the Crown Solicitor that the evidence relied upon by the State was inconclusive, as the pastoral leases were not enclosed and that the existence of roads through the pastoral leases “clearly show that the area of the pastoral leases in questions is not enclosed’ and that the grant of exploration licence 20/432 should be the subject of an inquiry into an expedited procedure objection application before the Tribunal. 

The Crown Solicitor’s Office responded to the Native Title Party’s submission on 23 October 2000 stating that the State considered ‘that the roads you have referred to do not alter the ‘enclosed’ nature of the area the subject of exploration licence application E20/432’.

The matter was reconvened before me on 3 November 2000, when the State advised that the tenement was yet to be granted, as there was further investigations being made in relation to the enclosure issue.  The State again advised that the tenement would be granted within the next 7 days.

On 21 November 2000 the Department of Minerals and Energy advised the Tribunal that the Minister for Mines granted the exploration licence on 15 November 2000.

The issue which arises in these circumstances, namely whether the Tribunal has jurisdiction to maintain the inquiry once the grant has been made, has been considered by the Tribunal in Daniel & Ors (Ngarluma and Yindjibarndi people)/Western Australia/Raymond Butler and Stanley MacDonald, NNTT WO99/197, Hon CJ Sumner, 11 August 2000.  In that test case,

The Hon C.J. Sumner determined that the Tribunal has no jurisdiction to conduct a right to negotiate inquiry after the Government party has granted the tenement and that an application should be dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth) if the tenement is granted. That decision is applicable to the circumstances of the present inquiry.

Decision

The Government party has granted exploration licence 20/432 and accordingly the objection application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth) (as amended).

Ms J. Stuckey-Clarke
Member

6 December 2000