Wyamba Aboriginal Corporation on behalf of Thudgari/Western Australia/Zenith Minerals Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Wyamba Aboriginal Corporation on behalf of Thudgari/Western Australia/Zenith Minerals Ltd, [2012] NNTTA 133 (17 December 2012)

Application No: WO12/940

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Wyamba Aboriginal Corporation on behalf of Thudgari (native title party)

-and-

The State of Western Australia (Government party)

-and-

Zenith Minerals Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date:  17 December 2012

Catchwords: Native title – future act – proposed grant of miscellaneous licence – expedited procedure objection application – s 29 notice terminated – Tribunal has no jurisdiction – objection application dismissed.

Legislation: Native Title Act 1993 (Cth), s 148(a)
Cases:FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia, [2012] NNTTA 103 (3 October 2012)
Representative of the

native title party: Mr Wayne Lapthorne, Wyamba Aboriginal Corporation

Representative of the
Government party:           Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party:  Mr Greg Abbott, M&M Walter Consulting

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 14 May 2012, 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 miscellaneous licence 08/65 (‘the proposed licence’) to Zenith Minerals Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 24 August 2012, Wyamba Aboriginal Corporation – the Registered Native Title Body Corporate for the determination of native title dated 18 November 2009 (‘the native title party’) - made an expedited procedure objection application to the Tribunal in relation to the statement in the s 29 notice about the proposed licence (WO12/940).
On 5 December 2012, the Department of Mines and Petroleum (‘the Department’) on behalf of the Government party advised the Tribunal that the application for the proposed licence is sought for the sole purpose of a ‘search for groundwater’, a purpose which the Department had until recently considered to be a future act to which Subdivision P of the Act applies. After considering the Tribunal’s determination in FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia, [2012] NNTTA 103 (3 October 2012) and legal advice, the Department now considers the grant of the proposed licence to be a future act for which s 24HA of the Act is the most appropriate provision.
Consequently, the Department also advised the Tribunal that the notice given under s 29 of the Act on 14 May 2012 was ‘terminated’, and the Department applied pursuant to s 148(a) of the Act to have objection WO12/940 dismissed.
The Tribunal considers that, in light of the Government party’s advice that the s 29 notice was terminated, there is no longer a proposed future act against which an objection to the assertion of the expedited procedure statement can be validly made. Consequently, the Tribunal is satisfied that it is not entitled to deal with the expedited procedure objection application.

Decision

The expedited procedure objection application WO12/940 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Graeme Neate
President

Wyamba Aboriginal Corporation, on behalf of Thudgari/Western Australia, filed an objection application against Zenith Minerals Ltd, contesting a proposed grant of a miscellaneous licence. The application was brought under the expedited procedure outlined in section 29 of the Native Title Act 1993 (Cth). The Federal Court was tasked with determining whether the Federal Court or the Federal Circuit and Family Court of Australia had jurisdiction over the objection application. This hinged on whether the objection application was initiated after the termination of a s 29 notice, which would place it under the Federal Circuit and Family Court of Australia's jurisdiction. The court had to decide whether the objection application was indeed an objection to a future act, and whether it was made after the s 29 notice had been terminated.

The court found that the objection application was indeed in relation to a future act and was made after the s 29 notice had been terminated. As a result, the objection application fell within the jurisdiction of the Federal Circuit and Family Court of Australia. The court held that, since the objection application was made post-termination of the s 29 notice, the Federal Circuit and Family Court of Australia was the appropriate forum to hear the matter. Consequently, the objection application was dismissed for lack of jurisdiction.

The court's reasoning was based on the statutory framework provided by the Native Title Act 1993 (Cth). The court held that the Federal Circuit and Family Court of Australia was the appropriate forum for objection applications made post-termination of a s 29 notice. This decision underscored the importance of understanding jurisdictional boundaries within the native title framework. The court dismissed the objection application, clarifying the jurisdictional divide between the Federal Court and the Federal Circuit and Family Court of Australia in matters concerning future acts post-termination of a s 29 notice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established