Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/Arnhem Resources Pty Ltd
[2010] NNTTA 132
•16 August 2010
NATIONAL NATIVE TITLE TRIBUNAL
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/Arnhem Resources Pty Ltd, [2010] NNTTA 132 (16 August 2010)
Application No: WO09/312
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Victor Barunga and Others on behalf of the Dambimangari People (WC99/7) (native title party)
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The State of Western Australia (Government party)
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Arnhem Resources Pty Ltd (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 16 August 2010
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision of tenement from native title claim – native title not affected – Tribunal has no jurisdiction – objection application dismissed
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 148(a)
Cases:Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997), Hon C J Sumner
Solicitor for the
native title party: Ms Hema Hariharan, Kimberley Land Council
Representative of the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representatives of the Mr Greg Abbott, Department of Mines and Petroleum
Government party: Ms Claire Malavaux, Department of Mines and Petroleum
Representative of the
grantee party: Mr Steve Milner, Austwide Mining Title Management Pty Ltd
REASONS FOR DECISION TO DISMSS OBJECTION APPLICATION
On 14 January 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1664 (‘the proposed licence’) to Arnhem Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence, as originally notified, comprises an area of 658.41 square kilometres located 83 kilometres north-easterly of Derby in the Shire of Derby-West Kimberly. It is overlapped at 5.36 per cent by the registered native title claim of Dambimangari (WC99/7 – registered from 31 May 1999). No other native title claims overlap the proposed licence area.
On 14 May 2009, Victor Barunga and Others on behalf of Dambimangari (WC99/7) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
Relevant facts
On 30 July 2010, the Government party advised the Tribunal that the land the subject of Crown Grant (Meda) Location 15 would not be included in the grant of the proposed licence and on 4 August 2010, the Government party confirmed this would result in the exclusion from the grant of all land able to be claimed within Native Title Claim WC99/7.
In this case the grant will not be a future act as native title will not be affected (Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997), Hon C J Sumner) and the Tribunal has no power (jurisdiction) to deal with it.
The Tribunal observes that it would be preferable for the Government party, before it gives a notice under s 29 of the Act, to ascertain whether any areas applied for by the grantee party will be unavailable for grant. In this case all parties and the Tribunal have been required to spend time and resources on dealing with the objection application, only to find that it is dismissed because the grant will have no affect on native title.
Decision
Expedited procedure objection application WO09/312 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).
Hon C J Sumner
Deputy President
16 August 2010
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