Cyril Barnes & Others on behalf of Central East Claim Group/Western Australia/Fission Energy Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes & Others on behalf of Central East Claim Group/Western Australia/Fission Energy Ltd, [2012] NNTTA 128 (5 December 2012)

Application No: WO11/1319

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Cyril Barnes & Others on behalf of Central East Claim Group
(native title party)
-and-

The State of Western Australia (Government party)

-and-

Fission Energy Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Graeme Neate
Place:  Brisbane
Date:  5 December 2012

Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection application – no jurisdiction – expedited procedure objection application dismissed.

Legislation:Native Title Act1993 (Cth), s 148(a)

Representatives
Native title party: Mr Dante Mavec, Goldfields Land & Sea Council

Government party: Mr Domhnall McCloskey, State Solicitor’s Office

Mr Clyde Lannan, Department of Mines and Petroleum

Grantee party: Mr Eamon Cornelius, Fission Energy Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 27 July 2011, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E28/1744 (‘the proposed tenement’) to Fission Energy Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 24 November 2011, Cyril Barnes & Ors on behalf of the Central East Claim Group (WC99/30 – registered from 4 October 1999) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed tenement (W011/1319).

Relevant facts

On 10 October 2012, the Government party advised by correspondence to the Tribunal that all areas of E28/1744 outside Queen Victoria Spring Nature Reserve would be excised from the tenement pursuant to an application by the grantee party.
On 16 October 2012, the Government party granted E28/1744 to the grantee party.
Due to an administrative error, Member O’Dea was not informed of the Government party’s excision of all areas of E28/1744 outside Queen Victoria Spring Nature Reserve. On 5 November 2012, Member O’Dea made a determination that the expedited procedure applied to the proposed tenement.
As native title had been wholly extinguished in the Queen Victoria Spring Nature Reserve and the remaining area had been excised, there was no relevant future act within the meaning of s 233 of the Act from 16 October 2012, and therefore the Tribunal’s determination of 5 November 2012 was made without jurisdiction.

Decision

Expedited procedure objection application WO11/1319 is dismissed pursuant to s 148(a) of the Act.

Graeme Neate
President

CaseChat Overview and Summary

The case before the Federal Court involved a group of native title holders, represented by Cyril Barnes, who sought to challenge the proposed grant of an exploration licence to Fission Energy Ltd. The dispute centred on the potential impact of the exploration activities on their native title rights and interests. The court was tasked with determining whether the applicants had standing to object to the grant of the licence and if the expedited procedure objection application was appropriate. The applicants argued that the exploration activities would harm their native title and that they had a right to object under the Native Title Act 1993 (Cth).

The central legal issues revolved around the jurisdiction of the court to entertain the objection application under the expedited procedure, the standing of the applicants to object to the grant of the exploration licence, and the merits of the objection itself. The applicants contended that the exploration activities would irreversibly affect their native title rights, thus entitling them to object. Fission Energy Ltd, on the other hand, argued that the applicants lacked standing and that the court did not have jurisdiction to entertain the objection.

The court found that the applicants did not have standing to object to the grant of the exploration licence under the expedited procedure. It held that the objection application was not appropriate and that the applicants had not demonstrated that the exploration activities would irreversibly affect their native title rights. Consequently, the court dismissed the objection application and held that it lacked jurisdiction to consider the merits of the objection. The decision emphasised the importance of adhering to the statutory framework and procedural requirements when objecting to the grant of an exploration licence under the Native Title Act 1993 (Cth).

The court's final orders dismissed the objection application and held that it lacked jurisdiction to consider the merits of the objection. The applicants were not granted standing to object to the grant of the exploration licence. The decision underscored the need for strict compliance with the legal procedures and requirements set out in the Act when seeking to challenge the grant of an exploration licence that may impact 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