Yindjibarndi Aboriginal Corporation/Western Australia/Swancove Enterprises Pty Ltd

[2011] NNTTA 5

NATIONAL NATIVE TITLE TRIBUNAL

Yindjibarndi Aboriginal Corporation/Western Australia/Swancove Enterprises Pty Ltd, [2011] NNTTA 5 (3 February 2011)

Application No:        WO10/386

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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Swancove Enterprises Pty Ltd

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Neville MacPherson, Member
Place:  Perth
Date:  3 February 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), Hon C J Sumner

Solicitors for the              Mr George Irving, John Toohey Chambers
native title party:             Mr Simon Millman, Slater and Gordon

Solicitor 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 Sherry Hingston, Iron Mountain Mining

REASONS FOR DECISION TO DISMSS OBJECTION APPLICATION

1. On 10 February, 2010, 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 E47/1823 (‘the proposed licence’) to Swancove Enterprises 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).

2. The proposed licence comprises an area of 12.71 square kilometres and is located 60 kilometres east of Pannawonica, in the Shire of Ashburton. The proposed licence overlaps, at 50.8 per cent, the determination area of the Yindjibarndi People [Native Title Claim No. WC99/14, registered on 14 July, 1999, as the registered claim of the Ngarluma/Yindjibarndi People, was determined by the Federal Court to hold native title 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.

3. The proposed licence is also 49.25 per cent overlapped by the registered claims of the Kuruma Marthudunera (WC99/12 – registered from 24 June, 1999).  No other native title claims overlap the tenement.

4. On 11 March, 2010, the native title party made an expedited procedure objection application to the Tribunal in respect of the proposed licence.

5. On 4 June, 2010, an expedited procedure objection application was lodged with the Tribunal in respect of the proposed licence by Mark Lockyer and Others on behalf of Kurama Marthundunera (WO10/726).  On 22 September, 2010, an agreement was reached by the Kurama Martudunera native title party and the overlapping objection was withdrawn.

Relevant facts

1. On 17 January, 2011, the Government party advised the Tribunal that the land the subject of vested water reserve CR 38991 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. This reserve overlaps the proposed licence 50.8 percent, wholly overlapping the Yindjibarndi portion of the proposed licence. On the 18 January, 2011, the Government party confirmed this would result in the exclusion from the grant of all land able to be claimed by the native title party. Further, Tribunal mapping also confirms that the proposed licence wholly overlaps the vested reserve area.

2. The Tribunal advised parties on the 19 January, 2011 and invited comments from parties as to the Tribunal proposal to dismiss this matter under s 148(a) for no jurisdiction. Subsequently, the Government party and the grantee party supported the Tribunal proposal. The native title party did not provide comment.

3. In this case, the native title party rights 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), Hon C J Sumner), and the Tribunal has no power (jurisdiction) to deal with it.

Decision

1. Expedited procedure objection application WO10/386 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Neville MacPherson
Member