Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/ FMG Pilbara Pty Ltd

[2011] NNTTA 100

NATIONAL NATIVE TITLE TRIBUNAL

Nicholas Cooke & Anor on behalf of Innawonga and Bunjima/Western Australia/ FMG Pilbara Pty Ltd, [2011] NNTTA 100 (7 June 2011)

Application Nos:               WO10/1347, WO10/1348

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Nicholas Cooke & Anor on behalf of Innawonga and Bunjima (WC96/61) (native title party)

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The State of Western Australia (Government party)

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FMG Pilbara Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth

Date of dismissal:               26 May 2011
Date of reasons:                 7 June 2011

Catchwords:  Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – native title determination application amended – registered claim no longer covers area of prospecting licences –  Tribunal has no power (is not entitled to deal with) the objection application – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth), ss 29, 29(2), 30(1), 75, 148(a)

Representative of the

native title party:              Ms Lea Notte, Pilbara Native Title Service

Representative of the

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

Representative of the

grantee party:  Ms Denice Johns, FMG Pilbara Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

1. On 16 June 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant prospecting licenses P47/1536 and P47/1537 to FMG Pilbara Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grants attracted the expedited procedure.

2. On 12 October 2010, Nicholas Cooke and Anor on behalf of Innawonga and Bunjima – Native Title Claim No. WC96/61, registered on 4 June 1996 (the native title party) made expedited procedure objection applications to the Tribunal in relation to P47/1536 (WO10/1347) and P47/1537 (WO10/1348) (the objections).

3. On 15 November 2010, the Tribunal received from the Federal Court an amended native title determination application made by the native title party.   The amended application reduced the area of the native title party’s claim, drawing back the boundary from the Yinhawangka Part A and Part B claims (WC10/16 and WC10/11 respectively).   Tribunal mapping and analysis indicates that the native title party’s amended claim boundary no longer overlaps tenements P47/1536 and P47/1537.  The tenements are no longer within the amended native title party claim area.

Power of the Tribunal to deal with the objections

1. Section 75 of the Native Title Act 1993 (Cth) provides that a native title party may make an expedited procedure application. Pursuant to sections 29(2) and 30(1) of the Act, the native title party is no longer a native title party ‘in relation to the land or waters that will be affected by the act’ to which the objections relate if it is neither a registered native title claimant nor a registered native title body corporate in relation to the prospecting licence areas.

2. While the objections were validly made by the native title party and accepted by the Tribunal at the time of lodgement of the objections, the circumstances giving rise under section 75 of the Native Title Act 1993 (Cth) for the native title party to make and maintain the objections no longer exist. The native title party now lacks standing to prosecute the objections and the Tribunal does not have the power to conduct an inquiry because the native title party is no longer ‘a native title party’ pursuant to sections 29(2) and 30(1) of the Act. On this basis, I am satisfied that the Tribunal is no longer entitled to deal with the objection applications and they should be dismissed pursuant to s 148(a) of the Act.

3. On 13 May 2011, the Tribunal invited parties to file submissions in relation to whether the Tribunal should dismiss the expedited procedure objection applications for the reasons specified.  No submissions were received. 

Decision

1. Expedited procedure objection applications WO10/1347 and WO10/1348 are dismissed pursuant to s 148(a) of the Native Title Act1993 (Cth).

Hon C J Sumner

Deputy President

7 June 2011