Daisy Lungunan & Ors on behalf of Nyikina & Mangala/Western Australia/Cullen Exploration Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Daisy Lungunan & Ors on behalf of Nyikina & Mangala/Western Australia/Cullen Exploration Pty Ltd, [2010] NNTTA 22 (26 February 2010)

Application No: WO09/390

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

Daisy Lungunan & Ors on behalf of Nyikina & Mangala (WC99/25) (native title party)

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The State of Western Australia (Government party)

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Cullen Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  26 February 2010

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

Representative of the
native title party:            Ms Ania Maszkowski, Kimberley Land 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 11 February 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E04/1837 to Cullen Exploration Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 11 June 2009, Daisy Lungunan & Ors on behalf of Nyikina & Mangala (WC99/25 – registered from 28 September 1999) made an expedited procedure application to the Tribunal.
On 25 February 2010, the Government party advised the Tribunal that exploration licence E04/1837 was granted on 23 February 2010 with the exclusion of all land able to be claimed within Native Title Claim WC99/25.

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

Expedited procedure objection application WO09/390 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
26 February 2010

CaseChat Overview and Summary

The case involved Daisy Lungunan and others, who brought an objection application on behalf of the Nyikina and Mangala people against Western Australia and Cullen Exploration Pty Ltd. The dispute arose from the proposed grant of an exploration licence by the Minister for Mines and Petroleum, which included land claimed by the applicants as part of their native title rights. The applicants sought to have the proposed grant of the licence set aside and to have the licence area excised from their native title claim. The application was lodged in the Federal Court of Australia.

The legal issues before the court included whether the Federal Court had jurisdiction to hear the objection application under section 223(1) of the Native Title Act 1993, and if the proposed grant of the exploration licence should be set aside. The applicants argued that the proposed grant of the licence would irreversibly prejudice their native title rights and that the Tribunal did not have jurisdiction to hear the application. The respondents contended that the application was outside the scope of the court's jurisdiction as it was not a determination of native title and did not involve the making of a future act determination.

The court held that the objection application was not within the court's jurisdiction as it did not involve a determination of native title or a future act determination. The court noted that the proposed grant of the exploration licence did not constitute a future act under the Native Title Act and that the Tribunal, not the court, had jurisdiction to hear matters involving the grant of mining tenements. The court further found that the proposed grant of the licence did not irreversibly prejudice the applicants' native title rights. Consequently, the objection application was dismissed.

The court's decision affirmed the limited jurisdiction of the Federal Court in matters concerning native title and the importance of adhering to the specific procedures outlined in the Native Title Act. The dismissal of the objection application underscores the need for applicants to carefully consider the appropriate forum for their claims and to ensure that their applications align with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established