WF (deceased) & Others on behalf of Wiluna v Verona Capital Pty Ltd

[2014] NNTTA 57

NATIONAL NATIVE TITLE TRIBUNAL

WF (deceased) & Others on behalf of Wiluna v Verona Capital Pty Ltd [2014] NNTTA 57 (10 June 2014)

Applications No:             WO2013/0912

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

WF (deceased) & Ors on behalf of Wiluna  (native title party)

- and -

The State of Western Australia   (Government party)

- and -

Verona Capital Pty Ltd  (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date:  10 June 2014

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

Legislation:Native Title Act 1993 (Cth) ss 29, 148(a)

Cases:Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, [1997] NNTTA 167 (‘Garlett v Western Australia’)

WF (deceased) on behalf of Wiluna People v State of Western Australia [2013] FCA 755 (‘Wiluna v Western Australia’)

Representative of the  

native title party:            Ms Irene Assumpter Akumu, Central Desert Native Title Services Ltd

Representative of the     

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

Representative of the     

grantee party:                 Ms Sara Winton, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 24 April 2013 the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) ('the Act') of its intention to grant exploration licence E53/1738 to Verona Capital Pty Ltd (‘the grantee party’) and included in the notice a statement it considered that the grant attracted the expedited procedure.

2. On 23 August 2013, WF (deceased) & Others on behalf of Wiluna (claim WC1999/024 registered from 24 September 1999), (the ‘native title party’), lodged with the Tribunal an application which objected to the expedited procedure. A conditional determination (‘Wiluna v Western Australia’) was made by McKerracher J on 29 July 2013, which included areas claimed by the native title party (WAD6164/1998). It will become effective once the court makes a determination as to the prescribed body corporate for the determination area. I note the native title party are yet to nominate a prescribed body corporate as at the date of this decision, and so the persons whose names appear on the Register of Native Title Claims as the applicant for this native title claim group remains the native title party for the purposes of future acts under the Act, until a prescribed body corporate is registered.

3. On 16 May 2014, the Government party advised the Tribunal that on 25 March 2014, the grantee party had written to the Department of Mines and Petroleum advising it wished to excise the portion of land subject to this objection from the area to be granted. The excision will mean the proposed future act will not include any of the Wiluna determination area. Accordingly, as the Wiluna land will be excluded from grant, the future act in respect to the Wiluna determination area is not a future act, as native title would not be affected (see Garlett v Western Australia). 

4. However, in relation to this proposed licence, there was one other native title claim overlapping the area. The Wutha claim group (WC1999/010) lodged an objection on 17 July 2013 (WO2013/0789). This objection remains on foot and directions have been issued for the matter to proceed to an inquiry.

1. As such, even though the objection lodged by the Wiluna native title group is dismissed by the effect of this current decision, no grant can be made in relation to E53/1738 until the Wutha objection (WO2013/0789) is resolved.

Decision

1. Expedited procedure objection application WO2013/0912 in relation to E53/1738 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
MEMBER