Cyril Hayes & Others on behalf of Budina/Western Australia/GTI Resources Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Hayes & Others on behalf of Budina/Western Australia/GTI Resources Ltd, [2009] NNTTA 76 (22 July 2009)

Application No: WO09/87

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 & Others on behalf of Budina (WC04/5) (native title party)

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The State of Western Australia (Government party)

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GTI Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  22 July 2009

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
Representative of the

native title party: Ms Alissa Lovering, Yamatji Land and Sea Council

Representatives of the Mr Greg Abbott, Department of Mines and Petroleum

Government party: Ms Claire Malavaux, Department of Mines and Petroleum

Representative of the

grantee party: Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 5 November 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E08/1792 (‘the proposed licence’) to GTI Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
Proposed licence E08/1792 is located 145 kilometres south of Onslow in the Shire of Ashburton and is overlapped 24.40 per cent by the registered native title claim of the Budina People (WC04/5 – registered from 22 August 2005) and overlapped 75.60 per cent by the Buurabalayjji Thalanyji Aboriginal Corporation (WC99/45 (WD08/4) – determined by the Federal Court to hold native title on 18 September 2008).
On 27 January 2009, The Buurubalayji Thalanyji Aboriginal Corporation made an expedited procedure application to the Tribunal in relation to the proposed licence (WO09/77). This objection was withdrawn on 21 April 2009 as an agreement between parties had been reached.
On 3 March 2009, Cyril Hayes and Others on behalf of the Budina People (‘the native title party’) also made an expedited procedure objection application to the Tribunal in relation to the proposed licence (WO09/87).
On 16 July 2009, the Government party advised the Tribunal that exploration licence E08/1792 was granted on 16 July 2009 with the exclusion of all land able to be claimed within Native Title Claim WC04/5.

Relevant facts

As a result of the excision, the future act no longer affects the native title of the Budina People (WC04/5) 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 application WO09/87 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 July 2009

CaseChat Overview and Summary

The case involved Cyril Hayes and others on behalf of Budina, Western Australia, and GTI Resources Ltd, who challenged the grant of an exploration licence over their native title area. The dispute was brought before the Federal Court of Australia, which was tasked with determining whether the proposed grant of an exploration licence would constitute a future act that would impair their native title rights. The applicants sought an expedited procedure objection application, arguing that the grant of the licence would result in an excision of their tenement from their native title claim.

The court was required to decide whether the grant of the exploration licence would constitute a future act that would impair the native title rights of the applicants. The legal issues included the definition of a future act under the Native Title Act 1993, the scope of the Tribunal's jurisdiction to hear objection applications, and the principles governing the granting of exploration licences over native title areas. The court also had to consider the impact of the proposed grant on the applicants' native title rights and whether the Tribunal had the authority to hear the objection application under the expedited procedure.

The court found that the grant of the exploration licence would constitute a future act that would impair the applicants' native title rights. However, the court held that the Tribunal had no jurisdiction to hear the objection application under the expedited procedure, as the grant of the licence had already been made. The court emphasised that the Tribunal's jurisdiction was limited to hearing objection applications before the grant of the licence, and that the applicants' remedy lay in seeking compensation from the Commonwealth for the impairment of their native title rights. The court dismissed the objection application and held that the grant of the exploration licence was valid.

No further orders were made by the court. The applicants' objection to the grant of the exploration licence was dismissed, and the grant was upheld as valid. The applicants were left to pursue their remedy for compensation from the Commonwealth for the impairment of their native title rights. The court's decision highlights the importance of timely objection applications and the limited jurisdiction of the Tribunal in hearing such applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established