Yindjibarndi Aboriginal Corporation/Western Australia/Mineralogy Pty Ltd

[2011] NNTTA 88

NATIONAL NATIVE TITLE TRIBUNAL

Yindjibarndi Aboriginal Corporation/Western Australia/Mineralogy Pty Ltd, [2011] NNTTA 88 (23 May, 2011)

Application No:        WO10/366-367 and WO10/369-371

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

Yindjibarndi Aboriginal Corporation – (WC99/14)

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The State of Western Australia

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Mineralogy Pty Ltd

DECISION to dismiss OBJECTION APPLICATIONS

Tribunal:  Neville MacPherson, Member
Place:  Melbourne
Date:  23 May, 2011

Catchwords:  Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – native title not affected – Tribunal has no jurisdiction – objection applications dismissed

Legislation:Land Act 1933 (WA) s 33(1)

Native Title Act 1993 (Cth) ss 29, 30, 31, 75, 148(a) and 253

Cases:Daniel v Western Australia [2005] FCA 536 (2 May, 2005)

Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October, 1997)

Representatives for the   Mr George Irving, John Toohey Chambers

native title party:            Mr Simon Millman/Ms Kate House, Slater and Gordon Lawyers

Representatives for the   Mr Domhnall McCloskey, State Solicitor’s Office
Government party:         Mr Clyde Lannan, Department of Mines and Petroleum

Representative for the
grantee party:                 Ms Baljeet Singh, Mineralogy Pty Ltd

REASONS FOR DECISION TO DISMSS OBJECTION APPLICATION

1. On 4 November, 2009, 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 prospecting licences P47/1496, P47/1501, P47/1503, P47/1504 and P47/1505 (‘the proposed licences’) to Mineralogy Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).

2. On 4 March, 2010, the Yindjibarndi Aboriginal Corporation (‘YAC’) made expedited procedure objection applications to the Tribunal in respect of the proposed licences. YAC is the registered native title body corporate (‘RNTBC’) which holds the native title rights and interests of the Yindjibarndi People, as determined by the Federal Court on 2 May, 2005 in Native Title Claim No. WC99/14. Also on 4 March, 2010, the Kuruma Marthudunera People (WC99/12 – registered from 24 June, 1999), whose claim overlaps the proposed licences to varying extents, made expedited procedure objection applications in relation to proposed the licences but these objections were all withdrawn on 5 August, 2010, due to agreement being reached.

It subsequently came to the Tribunal’s attention that all of the areas in relation to which YAC had lodged objections were apparently subject to a water reserve (CR38991). This water reserve comprises an area where an approved determination (see ss 13 and 225 of the Act), specifying that native title does not exist, was made in Daniel v Western Australia [2005] FCA 536 (2 May 2005) (‘Daniel’). The Federal Court determined that CR 38991 (a reserve vested under s 33(1) of the Land Act 1933 (WA)), falls within the ‘Yindjibarndi Total Extinguishment Area.’ According to Government party quick appraisal documentation:

• P47/1496 (WO10/366) is 90.4% overlapped by the water reserve;
• P47/1501 (WO10/367) is 74.2% overlapped by the water reserve;
• P47/1503 (WO10/369) is 8% overlapped by the water reserve;
• P47/1504 (WO10/370 is 35.3% overlapped by the water reserve; and
• P47/1505 (WO10/371) is 63.7% overlapped by the water reserve.

1. To the extent that each tenement is not overlapped by the water reserve, each falls within the area subject to the Kuruma Marthudunera People’s registered claimant application. This is illustrated in the map below. The ‘Yindjibarndi Total Extinguishment Area’ is shown in green.

1. On 29 April, 2011, the Tribunal notified parties of this issue and called for submissions, to be received by 20 May, 2011.

2. The Government party made a submission to the Tribunal on 6 May, 2011. The Government party submitted that the Tribunal should dismiss the objections pursuant to s 148(a) of the Act.

Reasoning

1. Objections WO10/366-367 and WO10/369-371 were made by YAC. YAC is the RNTBC in relation to those areas included in the Determination Area in Daniel, where the existence of native title held by the Yindjibarndi People was recognised. In this matter, the only areas affected by the proposed licences that are within the Determination Area in Daniel are within the ‘Yindjibarndi Total Extinguishment Area.’

2. Section 75 of the Act provides that a ‘native title party’ may make an expedited procedure objection application, objecting to the inclusion of a statement that an act is an act attracting the expedited procedure.

3. Section 253 of the Act provides that ‘native title party’ has the meaning given by ss 29(2)(a) and (b) and s 30. These provisions all refer to circumstances where a RNTBC or a ‘registered native title claimant (‘RNTC’) in relation to any of the land or waters that will be affected by the act’ is a ‘native title party’.

4. It is clear that YAC has no status as either a RNTBC or a RNTC in relation to any part of each proposed licence that is within the area subject to the Kuruma Marthudunera claim, and, so, it cannot be a ‘native title party’ in relation to any of those areas.

5. The remainder of the area subject to each proposed licence falls wholly within water reserve CR38991 which, as noted, falls within the ‘Yindjibarndi Total Extinguishment Area’, as found in Daniel. YAC cannot be a RNTBC or a RNTC in relation to any of those areas because the determination was that native title does not exist in those areas: Daniel.  

6. In any case, there can be no future acts in relation to those areas because the definition of ‘future act’ in s 233(1) requires the act to have some actual or potential ‘affect’ on native title rights and interests in order to be a ‘future act’, which is not possible if those rights and interests have been found to be extinguished.

7. It is, therefore, the view of the Tribunal that, in these circumstances, the rights of the native title party have been determined to be extinguished in relation to the area subject to water reserve CR38991, and, consequently, there can be no future act  in relation to the grant of the proposed licences over that area because there is no native title that will be affected by the grants over that area (Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October, 1997)). As noted above, at para [10], YAC cannot be a RNTBC or a RNTC in relation to any part of each proposed licence that is within that area. Nor can YAC be either a RNTBC or a RNTC in relation to any part of each proposed licence that is within the area subject to the Kuruma Marthudunera claim, as noted at para [9].

8. As a result, there is no native title party for that area and, accordingly, the Tribunal has no jurisdiction to deal with this matter.

Decision

1. Expedited procedure objection applications WO10/367-368 and WO10/369-371 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Neville MacPherson
Member