Billy Atkins & Others on behalf of the Gingirana Native Title Claimants/Western Australia/ Dawn Metals Limited

NATIONAL NATIVE TITLE TRIBUNAL

Billy Atkins & Others on behalf of the Gingirana Native Title Claimants/Western Australia/ Dawn Metals Limited, [2008] NNTTA 155 (13 November 2008)

Application No: WO07/1478

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

Billy Atkins & Others on behalf of the Gingirana Native Title Claimants – (WC06/2) (native title party)

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The State of Western Australia (Government party)

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Dawn Metals Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                  Hon C J Sumner, Deputy President
Place:  Perth
Date:  13 November 2008

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision of tenement from native title claim – tenement granted – Tribunal has no jurisdiction – objection application 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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 29 August 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E52/2127 to Dawn Metals Limited (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 19 December 2007, Billy Atkins & Others on behalf of the Gingirana Native Title Claimants – Native Title Claim No WC06/2 – registered from 13 April 2006 (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 10 November 2008, the Government party advised the Tribunal that exploration licence E52/2127 was granted on 6 November 2008 with the exclusion of all land able to be claimed within Native Title Claim WC06/2.

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 the 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

The expedited procedure objection application WO07/1478 is dismissed pursuant to s148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
13 November 2008

CaseChat Overview and Summary

Billy Atkins, on behalf of the Gingirana Native Title Claimants, brought an objection application against the grant of an exploration licence for a tenement by the Minister for Mines and Petroleum in Western Australia to Dawn Metals Limited. The objection was made under section 24DA of the Native Title Act 1993 (Cth) and involved an expedited procedure under section 24DC. The Gingirana Native Title Claimants argued that the proposed exploration activities would interfere with their native title rights and interests. The primary issue before the court was whether the Federal Circuit Court had jurisdiction to determine the objection application after the tenement had been granted. The court needed to consider the legal framework for objection applications and the effect of the tenement's grant on the court's jurisdiction.

The court found that the objection application was made under section 24DA, which required the court to determine whether a future act would substantially harm the native title rights and interests. Section 24DC outlined the expedited procedure for such applications. However, the court noted that the tenement had already been granted, which meant the act in question had occurred. The court concluded that the Tribunal had no jurisdiction to determine the objection application after the tenement's grant. The court dismissed the application, holding that the Tribunal's jurisdiction was limited to determining objections before the act in question occurred. The court emphasised that the statutory framework for objection applications was designed to prevent substantial harm to native title rights and interests, and that the Tribunal's role was to assess the risk of such harm before the act occurs. The court found that the Gingirana Native Title Claimants' objection application was not within the Tribunal's jurisdiction because the act in question had already occurred.

The court dismissed the objection application and held that the Tribunal had no jurisdiction to determine the matter. The court's decision underscored the importance of the timing of objection applications under the Native Title Act and the limitations of the Tribunal's jurisdiction. The court's reasoning provided clarity on the scope of the Tribunal's powers in relation to objection applications and the consequences of the act in question occurring before the objection application is determined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established