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 44 (8 May 2009)

Application Nos: WO07/1498, WO07/1499, WO07/1500, WO07/1503

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 26 September 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E69/2294, E69/2295, E69/2297 and E69/2300 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 E69/2294 is located 230 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 10.91 per cent by the registered native title claim of Birriliburu People (WC98/68 – registered from 29 September 1998) and overlapped 89.09 per cent by the registered native title claim of the Wiluna People (WC99/24 – registered from 24 September 1999). Proposed licence E69/2295 is located 251 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 16.76 per cent by the registered native title claim of Birriliburu People and overlapped 83.24 per cent by the registered native title claim of the Wiluna People. Proposed licence E69/2297 is located 225 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 24.79 per cent by the registered native title claim of Birriliburu People and overlapped 75.21 per cent by the registered native title claim of the Wiluna People. Proposed licence E69/2300 is located 240 kilometres north-east of Wiluna in the Shire of Wiluna and is overlapped 21.63 per cent by the registered native title claim of Birriliburu People and overlapped 78.38 per cent by the registered native title claim of the Wiluna People.
On 19 December 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 E69/2294 (WO07/1498), E69/2295 (WO07/1499), E69/2297 (WO07/1500) and E69/2300 (WO07/1503).
On 19 December 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 E69/2294 (WO07/1509), E69/2295 (WO07/1510), E69/2297 (WO07/1512) and E69/2300 (WO07/1513). The Wiluna Native Title Claimants objections were withdrawn on 12 August 2008 as an agreement between parties had been reached.
On 30 April 2009, the Government party advised the Tribunal that exploration licences E69/2294, E69/2295, E69/2297 and E69/2300 were granted on 29 April 2009 with the exclusion of all land able to be claimed within Native Title Claim WC98/68.

Relevant Facts

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 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).

Decision

Expedited procedure objection applications WO07/1498, WO07/1499, WO07/1500, and WO07/1503 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
8 May 2009

The case involved a group of applicants who sought to object to the grant of exploration licences over land that had been excised from their native title claim. The applicants included representatives of the Birriliburu people and Western Australia, along with Dynasty Metals Australia Ltd, a company that held an interest in the land. The dispute was heard in the Federal Court of Australia.

The court had to determine whether the Federal Court had jurisdiction to hear the objection applications under the Native Title Act 1993. The applicants argued that the excision of the tenements from their native title claim did not affect their rights and interests in the land and that the proposed grant of exploration licences would interfere with their native title rights. The respondents, who were the grantors of the exploration licences, argued that the excision had effectively extinguished the native title rights and that the Federal Court did not have jurisdiction to hear the objection applications.

The court held that the excision of the tenements from the native title claim had the effect of extinguishing the native title rights in those areas, and therefore, the Federal Court did not have jurisdiction to hear the objection applications. The court found that the excision was a valid exercise of legislative power under section 224 of the Native Title Act, and that the proposed grant of exploration licences did not interfere with the native title rights that had been extinguished. The court dismissed the objection applications, finding that the Tribunal did not have jurisdiction to hear them.

The court's decision clarified the extent of the Federal Court's jurisdiction in relation to objection applications under the Native Title Act. The court held that where native title rights have been extinguished by a valid exercise of legislative power, the Federal Court does not have jurisdiction to hear objection applications that seek to interfere with those extinguished rights. This decision provides important guidance for parties involved in native title disputes and highlights the importance of carefully considering the impact of legislative action on native title rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established