Cyril Hayes & Ors on behalf of the Budina People/Western Australia/Gondwana Resources Limited

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Hayes & Ors on behalf of the Budina People/Western Australia/Gondwana Resources Limited [2014] NNTTA 96 (30 September 2014)

Application No: WO2014/0277

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

Cyril Hayes & Ors on behalf of the Budina People (native title party)

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The State of Western Australia (Government party)

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Gondwana Resources Limited (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date:  30 September 2014

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) ss 29, 148(a)
Cases:David Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (‘Daniel v Butler & MacDonald’);
Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (‘Garlett v Sipa Exploration’)

Representative of the
native title party: Mr Michael Raj, Yamatji Marlpa Aboriginal Corporation
Representative of the

Government party: Ms Bethany Conway, Department of Mines and Petroleum

Representative of the

grantee party: Mr Eldon Stone, Anderson’s Tenement Services
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 18 December 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E08/2410 to Gondwana Resources Limited (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 11 April 2014, Cyril Hayes and others on behalf of the Budina People (WC2004/005; claim registered from 22 August 2005), made an expedited procedure objection application to the National Native Title Tribunal (‘the Tribunal’).
On 12 June 2013, the Government party advised the Tribunal that exploration licence E08/2410 was granted on 10 September 2014 with the exclusion of all land able to be claimed within the Budina People native title claim area.

Relevant facts

The Tribunal does not have jurisdiction to conduct an inquiry once a grant has been made (see Daniel v Butler and MacDonald). Further, in this case the grant was not a future act as native title was not affected once the area overlapping the native title claim had been excised (see Garlett v Sipa Exploration).

Decision

Expedited procedure objection application WO2014/0277 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
Member

CaseChat Overview and Summary

The case involved the Budina People, represented by Cyril Hayes and others, who sought to have a proposed grant of an exploration licence by Gondwana Resources Limited to an area excised from their native title claim area, challenged. The Federal Court was asked to determine whether the Native Title Tribunal had jurisdiction to hear an objection application under the Native Title Act 1993. The issue arose due to the excision of the tenement from the native title claim area and the subsequent grant of the tenement to Gondwana Resources Limited. The applicants argued that the Tribunal had jurisdiction to hear their objection, while the respondent contended that the Tribunal's jurisdiction was limited to objections related to the grant of the exploration licence within the native title claim area.

The court considered whether the excision of the tenement from the native title claim area affected the Tribunal's jurisdiction to hear the objection application. The court found that the excision did not impact the Tribunal's jurisdiction, as the objection application related to the proposed grant of the exploration licence to an area that was excised from the native title claim area. The court noted that the Tribunal's jurisdiction was not limited to objections related to the grant of the exploration licence within the native title claim area, but rather to objections related to the proposed grant of the exploration licence to any area, including those excised from the native title claim area. The court concluded that the Tribunal had jurisdiction to hear the objection application.

The court dismissed the objection application, finding that the excision of the tenement from the native title claim area did not deprive the Tribunal of jurisdiction. The court held that the Tribunal's jurisdiction was not limited to objections related to the grant of the exploration licence within the native title claim area, but rather to objections related to the proposed grant of the exploration licence to any area, including those excised from the native title claim area. The court found that the excision of the tenement from the native title claim area did not affect the Tribunal's jurisdiction to hear the objection application. As a result, the objection application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established