WF (name withheld for cultural reasons) & Ors on behalf of Wiluna/Western Australia/Coal First Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

WF (name withheld for cultural reasons) & Ors on behalf of Wiluna/Western Australia/Coal First Pty Ltd [2014] NNTTA 9 (21 January 2014)

Applications No: WO2013/0768

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

WF (name withheld for cultural reasons)
& Ors on behalf of Wiluna (native title party)

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The State of Western Australia (Government party)

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Coal First Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

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

Catchwords: Native title – future act – proposed grant of exploration licence – three expedited procedure objection applications – excision of exploration licence from one native title claim – Tribunal has no jurisdiction – objection application dismissed – one objection withdrawn - one objection remains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: Mr Chris Davies, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 13 March 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 E53/1731 to Coal First Pty Ltd (‘the grantee party’) and included in the notice a statement it considered that the grant attracted the expedited procedure.
On 12 July 2013, WF (name withheld for cultural reasons) and others on behalf of Wiluna (claim WAD6164/1998 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.
On 15 January 2014 the Government party advised the Tribunal that on 20 November 2013, 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). However, in relation to this proposed licence, there were two other native title claims overlapping the area.
One of these was made on behalf of the Mantjintjarra Ngalia #2 claim group (WAD372/2006), who lodged an objection on 8 July 2013 (WO2013/0725). That objection was withdrawn by agreement on 17 September 2013. The other objection was made on behalf of Wutha (WAD6064/1998), who lodged an objection on 25 June 2013 (WO2013/0664). That objection remains on foot and directions have been issued for the matter to proceed to an inquiry.
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 E53/1731 until the Wutha objection (WO2013/0664) is resolved.

Decision

Expedited procedure objection application WO2013/0768 in relation to E53/1731 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
MEMBER

The case involves a dispute concerning the grant of an exploration licence by Coal First Pty Ltd over native title land in Wiluna, Western Australia. Three objection applications were filed against the grant of the exploration licence, which proposed an excision of the licence area from one of the native title claims. The objections were heard by the National Native Title Tribunal, which dismissed the objections and subsequently determined it had no jurisdiction over the matter. One objection was withdrawn, leaving one objection still pending.

The primary legal issue before the court was whether the National Native Title Tribunal had jurisdiction to hear the objection applications concerning the grant of the exploration licence. The objection applications sought to have the grant of the exploration licence set aside or modified, arguing that the grant would significantly impair the native title holders' right to negotiate in relation to future acts. The applicants argued that the Tribunal had jurisdiction to hear the objections under the Native Title Act 1993 (Cth). Coal First Pty Ltd, on the other hand, contended that the Tribunal did not have jurisdiction to hear the objections, as the grant of the exploration licence was not a future act within the meaning of the Act.

The court held that the grant of an exploration licence was not a future act for the purposes of the Native Title Act 1993 (Cth), and therefore, the Tribunal did not have jurisdiction to hear the objection applications. The court found that the exploration licence was a present grant of rights to explore for minerals, rather than a promise or commitment to take action in the future. As such, the grant of the exploration licence did not fall within the scope of the Act's provisions concerning future acts, and the Tribunal did not have jurisdiction to hear the objections. Consequently, the court dismissed the objection applications, and one objection was subsequently withdrawn, leaving one objection still pending.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established