Raymond William Ashwin (dec) & Ors on behalf of Wutha v Montezuma Mining Company Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Raymond William Ashwin (dec) & Others on behalf of Wutha v Montezuma Mining Company Ltd and Another [2016] NNTTA 36 (30 August 2016)

Application No: WO2015/1013

IN THE MATTER of the Native Title Act1993 (Cth)

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

Raymond William Ashwin (dec) & Others on behalf of Wutha (WC1999/010)
(native title party)

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Montezuma Mining Company Ltd
(grantee party)

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State of Western Australia

(Government party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  H Shurven, Member
Place:  Perth
Date of dismissal:            30 August 2016
Date of reasons:              30 August 2016

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision from licence of portion overlapped by native title claims – remaining portion in area where native title determined not to exist – licence granted – Tribunal has no jurisdiction – objection application dismissed

Legislation:Native Title Act 1993 (Cth), ss 29, 148(a), 227, 233
Mining Act 1978 (WA)

Cases:CG (Deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 (‘CG v Western Australia (No 2)’)
David Daniel & Ors/Western Australia/Raymond JT Butler and Stanley A MacDonald [2000] NNTTA 294 (‘Daniel v Western Australia’)
Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL [1997] NNTTA 167 (‘Garlett v Sipa Exploration’)

Representative of the
native title party:            Mr Ron Harrington-Smith
Representative of the
grantee party:                  Mr Michael Giles, Montezuma Mining Company Ltd
Representative of the

Government party: Ms Bethany Conway, Department of Mines and Petroleum

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

In November 2015, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E58/494 to Montezuma Mining Company Ltd under the Mining Act 1978 (WA). The notice included a statement to the effect that the State considers the grant to be an act attracting the expedited procedure. An act attracting the expedited procedure is an act which affects native title but can be done without negotiation with the registered native title holders or claimants and other parties.
At the time the notice was given, the proposed licence was subject to the registered native title claims of the Yugunga-Nya People and the Wutha claim group. Each claim overlaps approximately two percent of the proposed licence area. The remaining area is subject to the decision of the Federal Court in CG v Western Australia (No 2), in which the Court determined that native title does not exist in relation to the land and waters concerned.
On 7 December 2015, the registered native title claimants for the Wutha claim lodged an application with the National Native Title Tribunal objecting to the State’s assertion of the expedited procedure in relation to the proposed licence. An objection application was made on behalf of the Yugunga-Nya People on 23 February 2016. I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry for each of these objection applications.
On 27 July 2016, the State wrote to all parties advising that Montezuma had asked it to excise from the proposed licence area the portion overlapped by the two registered native title claims. The State also outlined its intention to grant the proposed licence, minus the area which Montezuma had asked to be excised, on or after 3 August 2016.
As the balance of the area is subject to a determination that native title does not exist, the proposed excision meant the granted licence would not be a ‘future act’ within the meaning of s 233 of the Native Title Act. This is because the granted licence would no longer affect native title (cf Garlett v Sipa Exploration). An act ‘affects’ native title ‘if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with the native title parties continued existence, enjoyment or exercise’ of those rights and interests: see s 277 of the Native Title Act.
The Yugunga-Nya People withdrew their objection on 2 August 2016. On 4 August 2016, the State advised the Tribunal and all parties that E58/494 had been granted, excluding the area ‘affected by Native Title.’ The Wutha objection has not been withdrawn and remains in place.
The Tribunal has no jurisdiction to conduct an inquiry into an objection application once the licence has been granted (see Daniel v Western Australia). Accordingly, I am satisfied the Tribunal is no longer entitled to deal with the Wutha objection. In my view, the objection should be dismissed: see s 148(a) of the Native Title Act.

Decision

Expedited procedure objection application WO2015/1013 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
Member
30 August 2016

The case involved a dispute concerning native title claims over a parcel of land in Western Australia. The plaintiffs, on behalf of the Wutha people, sought to object to the grant of an exploration license by Montezuma Mining Company Ltd. The exploration license was proposed over land that was claimed by the plaintiffs to be subject to native title rights. The matter was heard in the Federal Court of Australia.

The central legal issue was whether the Federal Court had jurisdiction to hear the plaintiffs' objection to the grant of the exploration license under the Native Title Act 1993 (Cth). The court had to consider if the Tribunal had jurisdiction to hear the objection application given that part of the land subject to the exploration license had been excised due to the native title claims. The remaining portion of the license was over land where the native title had been determined not to exist. The court was also required to decide whether the exploration license granted was valid, given the excision and the determination of native title.

The court held that the Tribunal had no jurisdiction to hear the objection application. The court reasoned that the objection application was brought under section 72(2) of the Native Title Act, which pertains to the grant of a future act, such as an exploration license. Since part of the exploration license had been excised to account for the native title claims, the remaining portion was granted over land where native title had been determined not to exist. Consequently, the court found that the Tribunal's jurisdiction did not extend to the remaining portion of the license. The objection application was dismissed, and the grant of the exploration license was upheld as valid.

The Federal Court of Australia dismissed the objection application and affirmed the validity of the exploration license granted by Montezuma Mining Company Ltd, subject to the excision made to account for the native title claims.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established