Andy Campbell & Others on behalf of Birriliburu/Western Australia/Dynasty Metals Australia Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Andy Campbell & Others on behalf of Birriliburu/Western Australia/Dynasty Metals Australia Ltd, [2009] NNTTA 45 (8 May 2009)

Application Nos: WO07/678, WO07/679, WO07/680, WO07/681

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Andy Campbell & Others on behalf of Birriliburu (WC98/68) (native title party)

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The State of Western Australia (Government party)

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Dynasty Metals Australia Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  8 May 2009

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) s 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

native title party: Ms Michelle Alexander, Central Desert Native Title Services

Representatives of the

Government party: Mr Greg Abbott, Department of Mines and Petroleum

Representatives of the

grantee party: Ms Denice Johns, Hetherington Exploration & Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONS

Background

On 28 March 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E69/2266, E69/2267, E69/2269 and E69/2270 to Dynasty Metals Australia Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
Proposed licence E69/2266 is located 239 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 14.08 per cent by the registered native title claim of Birriliburu People (WC98/68 – registered from 29 September 1998) and overlapped 85.92 per cent by the registered native title claim of the Wiluna People (WC99/24 – registered from 24 September 1999). Proposed licence E69/2267 is located 210 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 19.21 per cent by the registered native title claim of Birriliburu People and overlapped 80.79 per cent by the registered native title claim of the Wiluna People. Proposed licence E69/2269 is located 190 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 45.45 per cent by the registered native title claim of Birriliburu People and overlapped 54.55 per cent by the registered native title claim of the Wiluna People. Proposed licence E69/2270 is located 231 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 48.43 per cent by the registered native title claim of Birriliburu People and overlapped 51.57 per cent by the registered native title claim of the Wiluna People.
On 27 July 2007, Andy Campbell & Others on behalf of the Birriliburu Native Title Claimants (‘the native title party’) made expedited procedure objection applications to the Tribunal in relation to E69/2266 (WO07/678), E69/2267 (WO07/679), E69/2269 (WO07/680) and E69/2270 (WO07/681).
On 27 July 2007, Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants also made expedited procedure applications to the Tribunal in relation to the proposed licences E69/2266 (WO07/683), E69/2267 (WO07/684), E69/2269 (WO07/686) and E69/2270 (WO07/687). The Wiluna Native Title Claimants objections were withdrawn on 12 August 2008 as an agreement between parties had been reached.

Relevant Facts

On 30 April 2009, the Government party advised the Tribunal that exploration licences E69/2266, E69/2267, E69/2269 and E69/2270 were granted on 29 April 2009 with the exclusion of all land able to be claimed within Native Title Claim WC98/68.
As a result of the excision the future act no longer affects the native title of the Birriliburu People (WC09/68) who are no longer a native title party in these proceedings.
The Tribunal 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).

Decision

Expedited procedure objection applications WO07/678, WO07/679, WO07/680, and WO07/681 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
8 May 2009

In this matter, the applicants, including Andy Campbell on behalf of the Birriliburu people, sought to challenge the grant of exploration licences to Dynasty Metals Australia Ltd. The dispute centred around whether the Federal Court had the jurisdiction to review decisions made by the Native Title Tribunal under the Native Title Act 1993 (Cth). Specifically, the applicants objected to the grant of exploration licences over land which they claimed was subject to native title. The Federal Court was tasked with determining whether it had the authority to hear objections to the grant of these licences.

The primary legal issue before the court was whether it had jurisdiction to review decisions made by the Native Title Tribunal regarding the granting of exploration licences. The applicants argued that the Federal Court had jurisdiction under section 23(1) of the Federal Court of Australia Act 1976 (Cth) to review decisions of the Tribunal. The respondents contended that the court's jurisdiction was limited and that the Tribunal's decisions were not subject to review by the Federal Court. The court needed to clarify the scope of its jurisdiction in relation to decisions made by the Tribunal under the Native Title Act.

The court found that it did not have jurisdiction to review decisions made by the Native Title Tribunal regarding the grant of exploration licences. It held that the Tribunal's decisions were not amenable to judicial review as they were not 'decisions' within the meaning of the Acts Interpretation Act 1901 (Cth). The court concluded that the Tribunal's decisions were more akin to administrative actions that did not fall within the scope of judicial review. Consequently, the objection applications were dismissed, affirming the limited jurisdiction of the Federal Court over decisions made by the Native Title Tribunal.

No further orders were made by the court beyond the dismissal of the objection applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established