Yindjibarndi Aboriginal Corporation/Western Australia/Mineralogy Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Yindjibarndi Aboriginal Corporation/Western Australia/Mineralogy Pty Ltd, [2011] NNTTA 56 (28 March 2011)

Application No: WO10/368

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 APPLICATION

Tribunal:  Neville MacPherson, Member
Place:  Melbourne
Date:  28 March 2011

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

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 148(a)

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, Slater and Gordon Lawyers

Representative for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office

Representative for the
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

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 exploration licence P47/1502 (‘the proposed licence’) to Mineralogy Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 1.02 square kilometres and is located 78 kilometres east of Pannawonica, in the Shire of Ashburton. The proposed licence is entirely overlapped by the determination area of the Yindjibarndi People (Native Title Claim No. WC99/14, registered on 14 July, 1999. The Federal Court determined that the Ngarluma/Yindjibarndi People hold native title, pursuant to the Act, on 2 May, 2005). The Yindjibarndi Aboriginal Corporation (‘the native title party’) is the registered native title body corporate, being the prescribed body corporate on the National Native Title Register, determined by the Court to hold the native title rights and interests in trust for the common law holders.
On 4 March, 2010, the native title party made an expedited procedure objection application to the Tribunal in respect of the proposed licence.

Relevant facts

It came to the Tribunal’s attention that a water reserve, CR38991, entirely overlaps the proposed licence. This water reserve covers an area where there is a determination specifying that native title does not exist. Daniel v Western Australia [2005] FCA 536 (2 May 2005), identifies the vested reserve, 38991, as falling within the Yindjibarndi Total Extinguishment Area.
On 1 December, 2010, the Tribunal advised all parties hereto (and invited any comments such parties might have) as to the Tribunal’s proposal to dismiss the Objection Application pursuant to s 148(a) of the Act for lack of jurisdiction. The Tribunal also invited the parties hereto to make submissions, and provide evidence, in relation to other proposed licences, for which Objections were running concurrently with this matter, and which were not entirely overlapped by the water reserve. An extension of time for the lodgement of submissions, to 17 December, 2010, was granted. The submission of the Government party was received on 16 December, 2010, such party agreeing that the water reserve entirely overlaps the proposed licence, and, as a result, the grant of P47/1502 does not constitute a future act. The grantee party and native title party have not provided comment on the water reserve issue in relation to P47/1502.
It is, therefore, the view of the Tribunal that, in these circumstances, the rights of the native title party have been extinguished, and, consequently, there can be no future act, as native title will not be affected (Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997)). Accordingly, the Tribunal has no jurisdiction to deal with this matter.

Decision

Expedited procedure objection application WO10/368 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Neville MacPherson
Member

In the Federal Court of Australia, the Yindjibarndi Aboriginal Corporation sought to object to a proposed grant of an exploration licence over their native title land. The defendant, Western Australia, had issued the proposed exploration licence to Mineralogy Pty Ltd. The primary dispute centred on whether the Native Title Act allowed the Corporation to object to the grant of the exploration licence under an expedited procedure, and whether the Federal Court had jurisdiction to hear the objection application. The court had to determine if the native title was likely to be affected by the proposed grant of the exploration licence, and if the Federal Court had jurisdiction to hear the objection application.

The court identified two key legal issues. The first was whether the Corporation's objection to the proposed grant of the exploration licence fell within the scope of the expedited procedure objection application under the Native Title Act. The second issue was whether the Federal Court had jurisdiction to hear the objection application if the native title was not likely to be affected by the proposed grant of the exploration licence. The court needed to examine the provisions of the Native Title Act and the relevant case law to resolve these issues.

The court concluded that the Corporation's objection did not fall within the scope of the expedited procedure objection application, as the native title was not likely to be affected by the proposed grant of the exploration licence. The court found that the objection application was therefore outside the scope of the expedited procedure objection application under the Native Title Act. Furthermore, the court held that it did not have jurisdiction to hear the objection application as the native title was not likely to be affected. Consequently, the objection application was dismissed.

The court made no orders as the objection application was dismissed. The decision emphasised the importance of the proper application of the expedited procedure objection application provisions under the Native Title Act, and the jurisdictional limits of the Federal Court in hearing such applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established