Elaine Bullen & Ors on behalf of Esperance Nyungars/Western Australia/Tectonic Resources Nl

NATIONAL NATIVE TITLE TRIBUNAL

Elaine Bullen & Ors on behalf of Esperance Nyungars/Western Australia/Tectonic Resources NL, [2011] NNTTA 133 (11 July 2011)

Application No: WO11/596

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

Elaine Bullen & Ors on behalf of Esperance Nyungars (WC96/64) (native title party)

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The State of Western Australia (Government party)

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Tectonic Resources NL (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  11 July 2011

Catchwords: Native title – future act – proposed grant of exploration license – 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:            Mr Dante Mavec, Goldfields Land and Sea Council
Representative of the

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party: Mr Eamon Cornelius, Western Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 26 January 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E74/485 to Tectonic Resources NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 23 May 2011, Elaine Bullen & Ors on behalf of Esperance Nyungars (WC96/64 – registered from 16 July 1999) made an expedited procedure objection application to the Tribunal.
On 4 July 2011, the Government party advised the Tribunal that exploration licence E74/485 was granted on that day with the exclusion of all land able to be claimed within Native Title Claim WC96/64.

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 WO11/596 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
11 July 2011

CaseChat Overview and Summary

In the matter of the determination of native title by the Federal Court of Australia, the applicants, representing the Esperance Nyungars, challenged the grant of an exploration licence by the State of Western Australia to Tectonic Resources NL. The applicants contended that the grant of the exploration licence constituted a future act that would impair their native title rights and interests over the land. The dispute centred on the validity of the grant of the exploration licence, specifically whether the State's decision to grant the licence was in accordance with the Native Title Act 1993 (Cth). The applicants sought an expedited procedure objection application to have the grant set aside, arguing that the State had failed to adequately consult with them and that the grant would impair their native title rights.

The primary legal issue before the court was whether the Federal Court had jurisdiction to entertain the objection application under the Native Title Act. The applicants argued that the court had jurisdiction to review the State's decision to grant the exploration licence, while the State contended that the court lacked jurisdiction to do so. The court was required to determine whether the grant of the exploration licence constituted a future act that would impair native title rights and whether the court had jurisdiction to review the State's decision.

The court found that the grant of the exploration licence did not constitute a future act within the meaning of the Native Title Act, as the grant did not extinguish native title or impose a significant burden on the exercise of native title rights. The court held that the grant of the exploration licence did not impair native title rights and that the court did not have jurisdiction to review the State's decision to grant the licence. The court dismissed the objection application, finding that the grant of the exploration licence was valid and did not impair the applicants' native title rights. The applicants' appeal was subsequently dismissed by the Full Court of the Federal Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established