(WC98/11) (Wo00/282) and Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People (WC99/17) (Wo00/301)/Western Australia/Hampton Hill Mining Nl

[2001] NNTTA 8

NATIONAL NATIVE TITLE TRIBUNAL

Marjorie Mourambine & Felicity Jean Mourambine on behalf of Baumgarten

(WC98/11) (WO00/282) and Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People (WC99/17) (WO00/301)/Western Australia/Hampton Hill Mining NL, [2001] NNTTA 8 (19 January 2001)

Application Nos:      WO00/282 and WO00/301

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Marjorie Mourambine & Felicity Jean Mourambine on behalf of Baumgarten

(WC98/11) (WO00/282)
and
Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People (WC99/17) (WO00/301)   (Native title parties)

- and -

The State of Western Australia   (Government party)

- and -

Hampton Hill Mining NL   (Grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:         The Hon C. J. Sumner
Place:               Perth
Date:                19 January 2001

Catchwords:   Native title – future act –proposed grant of exploration licence – expedited procedure objection applications – Government party satisfied that there is no future act because native title is extinguished – Government party makes the grant – Tribunal has no jurisdiction – Tribunal declined to make directions requiring Government party to provide information to native title party on why it formed the view that native title was extinguished – objection applications 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

1. On 23 February 2000, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence E51/877 to Hampton Hill Mining NL (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. On 12 June 2000 Marjorie Mourambine & Felicity Jean Mourambine on behalf of Baumgarten (WC98/11) (a native title party) made an expedited procedure objection application to the Tribunal (WO00/282).

On 23 June 2000 Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People (WC99/17) (a native title party) made an expedited procedure objection application to the Tribunal (WO00/301).

1. On 13 October 2000, the Crown Solicitor’s Office (CSO) advised the Tribunal and other parties that the Government party intended to grant the tenement on the basis that, consistent with the findings of the Full Federal Court in Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159, native title had been extinguished (in this case because of the enclosure of the relevant parts of pastoral leases covering the tenement). The grant was made on 18 December 2000.

The question of whether the Tribunal has jurisdiction to conduct an inquiry where the Government party has granted a mining tenement in these circumstances was determined in David Daniel & Ors (Ngarluma and Yindjibarndi people)/Western Australia/Raymond Butler and Stanley MacDonald, NNTT WO99/197, Hon CJ Sumner, 11 August 2000. In that matter I decided 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.

Should the Tribunal make directions for the Government party to provide information on extinguishment to the native title party?

1. In accordance with the Government party’s usual practice, the letter from the CSO of 13 October 2000 gave 14 days notice of its intention to make the grant. On 20 October 2000, the Yamatji Barna Baba Maaja Aboriginal Corporation (Yamatji) acting on behalf of the native title parties, wrote to the Government party and submitted that:

1. maps of the area in question appear to depict that the pastoral leases are not enclosed and that an Aboriginal corporation owns Belele pastoral lease (raising questions of whether native title has been extinguished over that area);

2. the existence of gazetted roads intersecting the tenement means that there was no enclosure;

3. to grant the tenement would be contrary to the Government party’s ‘Guidelines’ for ‘Granting of Mining Tenements where Native Title has been extinguished by previous Tenure’;

4. the Government party’s evidence is inconclusive and the question of whether a pastoral lease is improved or enclosed is a complicated question of both law and fact that cannot be dealt with summarily by reference to a plan which in this case was defective;

5. it be given an opportunity to be heard and make submissions on the issue;

6. the grantee party should be informed that the grant may be found to be invalid; and

7. E51/877 should be processed through the future act system of the NTA.

1. On 2 November 2000, the Government party replied to Yamatji advising that it was investigating its concerns and would respond before the tenement was granted.  On 14 December 2000, the Government party wrote to Yamatji and advised that:

1. it considered the pastoral leases to be wholly enclosed;

2. with respect to the Belele pastoral lease, the part of E51/877 which overlapped that pastoral lease had been excised from the tenement (thus removing any concern that any native title existing over that area might be affected by the grant);

3. in the Government party’s view the existence of gazetted roads intersecting the tenement does not preclude the relevant paddock from being enclosed; and

4. the Government party would grant the tenement on 18 December 2000.

1. On 14 December 2000, Yamatji replied to the CSO raising further queries about the factual basis upon which it had decided that native title had been extinguished and sought further explanation in relation to some issues.  It further noted that only four days notice of the intention to grant was being given and requested the matter be brought on before the Tribunal as a matter of urgency in order that outstanding issues be properly addressed.  In response to Yamatji’s request the Tribunal convened a Directions hearing on 15 December 2000. At the hearing Yamatji contended, for reasons referred to in its correspondence with the CSO, that native title had not been extinguished and that the Tribunal should make directions requiring the Government party to provide particulars of the enclosures and improvements and to provide an explanation in response to the queries raised in its letters of 20 October 2000 and 14 December 2000. The CSO responded by saying that:

1. it had given 14 days notice and intended to grant the tenement on 18 December 2000;

2. it had provided Yamatji with adequate information and there was no time for further particulars to be given; and

3. the Tribunal does not have power to grant any injunctive relief and the Government party would proceed to grant even if the directions sought by Yamatji were made by the Tribunal.

The grantee party said that quite a bit of work had been done on the issue since 13 October 2000 and it had provided evidence to the Government party. In response to a request from Yamatji the Government party said it was prepared to provide any information it had but that this may not be until after the tenement is granted.

1. The Tribunal declined to make the direction sought by Yamatji for the following reasons. The directions sought by the native title party did not go to the substance of the inquiry which the Tribunal is required to conduct into whether the expedited procedure is attracted. Further no party had contended that the Tribunal did not have jurisdiction to conduct an inquiry because of the extinguishment of native title. Rather than request the Tribunal to make a decision on extinguishment, the Government party, if satisfied about extinguishment, clearly intended to make the grant and then submit (in accordance with well established practice) that the Tribunal should dismiss the objection application under s 148(a) of the Native Title Act 1993 (Cth) on the basis that the tenement had already been granted. No submissions were made contesting this practice which is based on the decision in WO99/197 (cited above). This means that the substance of the extinguishment issue was not before the Tribunal. The Tribunal repeats its oft-expressed view that the proper forum within which to attempt to resolve this type of issue is the Courts, which have the power to make binding orders (see WO99/197 at 15).

The Tribunal understands from its experience in this and other matters that the Government party gives 14 days notice of its intention to grant tenements to enable a native title party an opportunity to make submissions on the factual basis for the Government party’s decision that native title has been extinguished; and time to seek injunctive relief from a Court. The Tribunal also understands that during the notice period the Government party is prepared to make available to a native title party, the tenure and other information upon which it has based its decision, either by providing copies of documents or permitting them to be inspected, so that a native title party is sufficiently well informed to make a submission. The Tribunal considers this to be appropriate. In this matter the Government party initially refrained from granting the tenement to enable it to consider the submissions made by Yamatji, but in the end remained convinced that it could grant the tenement because of the extinguishment of native title. In this respect a native title party is in the same position as if the Government party had declined to give notice under s 29 of the NTA in the first place because it was of the view that there was no future act involved because native title had been extinguished and would not therefore be affected (s 233(1)(c) NTA). In either of these situations the jurisdiction of the Tribunal is not enlivened. Any dispute will need to be taken to a Court.

1. Following the grant of the tenement, Yamatji wrote to the CSO and Tribunal (on 19 December 2000) complaining that it had not received a comprehensive response to its queries and raising a further specific query about the facts upon which the Government party had based its decision. Yamatji contended that one of the reasons for the Tribunal not making the directions it sought was that the Government party had undertaken to provide the information requested. On 20 December 2000, the CSO replied by confirming, in relation to the specific query raised by Yamatji, that the Government party had formed the view that all the relevant paddocks had been enclosed.  Although the undertaking from the Government party to make information available was referred to in the brief ex-tempore reasons I gave for declining to make the directions, it was not a decisive consideration. The most important factors were those referred to above and the fact that the Government party intended to grant the tenement even if the directions were made.  No doubt the Government party would say that it has adequately responded to Yamatji’s queries.

2. In future the Tribunal, in this type of situation and on the basis that the Government party provides an opportunity for a native title party to inspect relevant documents and make submissions, will decline to make directions requiring the Government party to provide information on the extinguishment issue to a native title party. As explained above such directions would not be related to any issue of substance before the Tribunal. Once the Government party has given notice of its intention to grant a tenement in these circumstances, the parties will need to deal with any issues which arise between themselves and seek redress in the Courts if they cannot be resolved. The Tribunal will not normally be further involved, except to dismiss the application once the grant has been made.

Decision

1. The Government party has granted exploration licence 51/877 and accordingly the objection application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth) (as amended).

Hon C. J. Sumner
Deputy President

19 January 2001