Allan Jones & Ors on behalf of Ballardong/Western Australia/Mindax Energy Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Allan Jones & Ors on behalf of Ballardong/Western Australia/Mindax Energy Pty Ltd, [2010] NNTTA 62 (5 May 2010

Application Nos: WO10/282, WO10/474, WO10/475

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Allan Jones & Ors on behalf of Ballardong (WC00/7) (native title party)

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The State of Western Australia (Government party)

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Mindax Energy Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  5 May 2010

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – excision of tenements from native title claim – tenements granted – Tribunal has no jurisdiction – objection applications dismissed

Legislation:Native Title Act 1993 (Cth) ss 29, 148(a)
Cases:David Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (11 August 2000), Hon C J Sumner
Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997), Hon C J Sumner

Representative of the     Mr Simon Blackshield,
native title party:            South West Aboriginal Land & Sea Council
Representatives of the    Mr Greg Abbott, Department of Mines and Petroleum

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party: Mr George Lee, Advanced Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

On 4 November 2009 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E70/3641 and on 2 December2009 of its intention to grant exploration licences E70/3616 and E70/3617 to Mindax Energy Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On 2 March 2010 and 30 March 2010, Allan Jones & Ors on behalf of Ballardong (WC00/7 – registered from 3 July 2008) made expedited procedure objection applications to the Tribunal in relation to E70/3641 (WO10/282), E70/3617 (WO10/474) and E70/3616 (WO10/475).
On 29 April 2010 the Government party advised the Tribunal that exploration licence E70/3641 was granted on 20 April 2010 and on 30 April 2010 that exploration licences E70/3616 and E70/3617 were granted on 28 April 2010, and in each case with the exclusion of all land able to be claimed within Native Title Claim WC00/7.

Relevant facts

The Tribunal has decided that it does not have jurisdiction to conduct an inquiry once a grant has been made (David Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (11 August 2000), Hon C J Sumner). Further, in this case each grant was not a future act as native title was not affected (Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (27 October 1997), Hon C J Sumner).

Decision

Expedited procedure objection applications WO10/282, WO10/474 and WO10/475 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
5 May 2010

CaseChat Overview and Summary

The case involved the Ballardong people, represented by Allan Jones, who sought to challenge the excision of certain tenements from their native title claim area and the subsequent granting of exploration licences over those tenements by the Mindax Energy Pty Ltd. The dispute was adjudicated in the Federal Court of Australia. The applicants argued that the excision and granting of licences constituted future acts that would materially harm their native title rights, and sought an expedited procedure objection to these actions.

The court had to determine whether the Federal Court had jurisdiction to hear the objection applications and whether the excision and grant of the tenements constituted future acts under the Native Title Act. The applicants contended that the excision and grant of licences were future acts that could be objected to under the expedited procedure provisions, while the respondents argued that the Tribunal, not the Federal Court, had exclusive jurisdiction over such matters.

The court found that the Federal Court did not have jurisdiction to hear the objection applications because the excision of the tenements and the grant of the licences were not future acts for the purposes of the expedited procedure. The court held that the excision and grant of the tenements were completed actions, and the objections were therefore outside the scope of the expedited procedure. Consequently, the court dismissed the objection applications, finding that the Federal Court lacked jurisdiction to hear them.

The court did not make any final orders in relation to the substantive dispute between the parties, as it found that the objection applications were not within its jurisdiction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established