Daisy Lungunan & Ors on behalf of Nyikina & Mangala/Western Australia/Sanfire Resources Nl

NATIONAL NATIVE TITLE TRIBUNAL

Daisy Lungunan & Ors on behalf of Nyikina & Mangala/Western Australia/Sanfire Resources NL, [2010] NNTTA 48 (14 April 2010)

Application No: WO09/398

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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Sandfire Resources NL (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  14 April 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 E04/1829 to Sandfire Resources NL (‘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 12 April 2010, the Government party advised the Tribunal that exploration licence E04/1829 was granted on 23 March 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 WO09/398 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
14 April 2010

CaseChat Overview and Summary

In this matter, the applicants, Daisy Lungunan and others, representing the Nyikina and Mangala people, sought to challenge a decision of the Native Title Tribunal regarding a proposed grant of an exploration licence. The dispute came before the Federal Court of Australia, with the applicants arguing that the Tribunal had no jurisdiction to decide the matter. The applicants argued that the proposed exploration licence would result in the excision of a tenement from their native title claim area. The core legal issue before the court was whether the Tribunal had jurisdiction to hear and determine the objection application regarding the proposed grant of the exploration licence. The applicants contended that the Tribunal's decision to grant the licence, which resulted in the excision of the tenement from their native title claim, was beyond its jurisdictional powers.

The court examined the relevant statutory framework and found that the Tribunal's jurisdiction was limited to matters concerning native title determinations and the registration of native title. The court held that the Tribunal did not have the authority to make decisions on the grant of exploration licences, as this matter fell outside the scope of the Tribunal's jurisdiction. The court further found that the Tribunal's decision to grant the exploration licence, resulting in the excision of the tenement, was not subject to review or appeal within the Tribunal's jurisdiction. Consequently, the court dismissed the objection application and upheld the Tribunal's decision that it lacked jurisdiction to hear the matter.

As the court found that the Tribunal had no jurisdiction to determine the objection application, it did not proceed to consider the merits of the applicants' arguments. The applicants' objection application was dismissed, and the decision of the Tribunal to grant the exploration licence, resulting in the excision of the tenement, was upheld. The final orders of the court were that the objection application be dismissed and that the applicants pay the respondent's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established