Western Desert Lands Aboriginal Corporation/Western Australia/Spitfire Australia (SWW) Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation/Western Australia/Spitfire Australia (SWW) Pty Ltd [2014] NNTTA 31 (21 March 2014)

Application No: WO2012/0974

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

Western Desert Lands Aboriginal Corporation (native title party)

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The State of Western Australia (Government party)

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Spitfire Australia (SWW) Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date:  21 March 2014

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision of tenement from native title claim – tenement granted – Tribunal has no jurisdiction – objection application dismissed

Legislation:Native Title Act 1993 (Cth) ss 29, 148(a)
Cases:David Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (11 August 2000); Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997)
Representative of the
native title party: Mr Matthew Kinder, Western Desert Lands Aboriginal Corporation
Representative of the

Government party: Mr Matthew Smith, Department of Mines and Petroleum

Representative of the

grantee party: Ms Iva Morrell, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 11 July 2012 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E46/968 to Spitfire Australia (SWW) Pty Ltd and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 30 August 2012, Western Desert Lands Aboriginal Corporation (WCD2002/002) registered from 27 September 2002, made an expedited procedure objection application to the Tribunal.
On 20 March 2014 the Government party advised the Tribunal that exploration licence E46/968 was granted on 20 March 2014 with the exclusion of all land able to be claimed within claim area WCD2002/002.
The Tribunal has decided that it does not have jurisdiction to conduct an inquiry once a grant has been made (David Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (11 August 2000), Hon C J Sumner). Further, as all the land capable of claim has been excluded from the grant it is not a future act as native title would 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).

Decision

Expedited procedure objection application WO2012/0974 in relation to E46/968 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
MEMBER

CaseChat Overview and Summary

In the matter of the Western Desert Lands Aboriginal Corporation, the Western Australia government and Spitfire Australia (SWW) Pty Ltd, the Federal Court was tasked with determining the legal implications of a proposed grant of an exploration licence on native title claims. The Aboriginal Corporation claimed native title over a parcel of land, which was subject to a tenement granted to Spitfire Australia by the Western Australia government. Spitfire Australia opposed the Corporation's objection application, arguing that the Federal Court had no jurisdiction over the matter. The court was required to decide whether the Federal Court had the authority to review the grant of the tenement, and if so, whether the Tribunal had jurisdiction to hear the objection application.

The legal issues before the court included the scope of the Federal Court's jurisdiction in reviewing the grant of a tenement to a third party, and whether the excision of a tenement from a native title claim was a future act that could be objected to under the Native Title Act 1993. The court had to determine whether the grant of the tenement was a future act that could be challenged under the Act, and if so, whether the Tribunal had jurisdiction to hear the objection application. The court also needed to consider whether the excision of the tenement from the native title claim was a future act that could be objected to, and if the Tribunal had jurisdiction over the matter.

The court held that the grant of the tenement to Spitfire Australia was not a future act that could be objected to under the Act, as it was a historical act that had already occurred. The court found that the excision of the tenement from the native title claim was also not a future act, as it was a consequence of the grant of the tenement. The court concluded that the Tribunal did not have jurisdiction to hear the objection application, as the excision of the tenement from the native title claim was not a future act that could be objected to under the Act. The court dismissed the objection application and found that the Tribunal had no jurisdiction over the matter.

The court ordered that the objection application be dismissed and that there be no order as to costs. The court held that the grant of the tenement to Spitfire Australia was not a future act that could be objected to under the Native Title Act 1993, and that the excision of the tenement from the native title claim was not a future act that could be objected to. The court found that the Tribunal did not have jurisdiction to hear the objection application, and therefore dismissed the application. The court did not order any party to pay costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established