Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/Arnhem Resources Pty Ltd

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

CaseChat Overview and Summary

In this case, the Dambimangari People, represented by Victor Barunga and others, challenged the Commonwealth's proposed grant of an exploration licence to Arnhem Resources Pty Ltd. The dispute centred on whether the proposed grant would affect the native title rights and interests of the Dambimangari People. The matter was heard in the Federal Court of Australia, which has jurisdiction over disputes involving native title.

The primary legal issue before the court was whether the proposed grant of the exploration licence would constitute a future act that would affect the native title rights and interests of the Dambimangari People. The court was also required to determine if the proposed excision of a tenement from the native title claim area would affect the native title rights and interests of the Dambimangari People. Furthermore, the court needed to consider whether the Native Title Tribunal had jurisdiction to hear the objection application.

The court found that the proposed grant of the exploration licence did not constitute a future act that would affect the native title rights and interests of the Dambimangari People. The court also held that the proposed excision of the tenement from the native title claim area would not affect the native title rights and interests of the Dambimangari People. Consequently, the court concluded that the Native Title Tribunal did not have jurisdiction to hear the objection application. As a result, the objection application was dismissed.

The court's decision was based on the principles established in previous cases, including Western Australia v Ward and Yarmirr v Northern Territory of Australia. The court held that a future act must be a proposed act that is certain and imminent, and that the proposed excision of the tenement from the native title claim area would not affect the native title rights and interests of the Dambimangari People. The court further held that the Native Title Tribunal did not have jurisdiction to hear the objection application as the proposed grant of the exploration licence did not affect the native title rights and interests of the Dambimangari People.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established