Elaine Bullen & Ors on behalf of the Esperance Nyungar People; /Western Australia/Paul Winston Askins & Mining Tenements Investments Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Elaine Bullen & Ors on behalf of the Esperance Nyungar People; /Western Australia/Paul Winston Askins & Mining Tenements Investments Pty Ltd [2014] NNTTA 119 (22 December 2014)

Applications No: WO2014/0442, WO2014/0444

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Elaine Bullen & Ors on behalf of the Esperance Nyungar People (native title party)

- and -

The State of Western Australia (Government party)

- and -

Paul Winston Askins (grantee party)

- and -

Mining Tenements Investments Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date:  22 December 2014

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – ILUA registered – Tribunal has no jurisdiction – objection application dismissed

Legislation:Native Title Act 1993 (Cth) ss 24EA, 24EB, 29, 148(a)
Cases:Daniel & Ors/Western Australia/Raymond J T Butler and Stanley A MacDonald, NNTT WO99/197, [2000] NNTTA 294 (‘Daniel v Butler & MacDonald’)
Representative of the
native title party: Andrew Burke, Goldfield Land & Sea Council
Representative of the

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

Representative of the

grantee party: Mr Paul Askins & Mr Michael Giles

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

On 12 February 2014 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E63/1679 to Mining Tenements Investments Pty Ltd and E63/1674 to Paul Winston Askins and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 10 June 2014, the Esperance Nyungar People lodged expedited procedure objection applications with the National Native Title Tribunal (‘the Tribunal’) for each of the exploration licences.
On 21 November 2014, the Tribunal registered an Indigenous Land Use Agreement ('ILUA') made between the Esperance Nyungar People and the State of Western Australia. An ILUA has the effect as if it were a contract among parties to the agreement (as per s 24EA of the Act).
Clause 5.2 of this ILUA states that all parties consent to the grant of all exploration licences within the agreement area. Both E63/1679 and E63/1674 fall within this area. The ILUA, therefore, satisfies s 24EB(1)(b) & (c) of the Act, validating the future acts, namely the proposed exploration licences E63/1679 and E63/1674.
On 15 December 2014, the Government party wrote to the Tribunal and all parties suggesting that the Tribunal does not have jurisdiction to determine an objection once the proposed future acts are validated by s 24EB of the Act. As noted in Daniel v Butler & MacDonald (at [8]), the Tribunal may dismiss an application if it is satisfied that it is not entitled to deal with the application. On 15 December 2014, the Tribunal wrote to all parties seeking submissions on whether they were content to have the matter dismissed. No submissions were received from any party. I agree that the Tribunal does not now have jurisdiction to deal with this matter.

Decision

Expedited procedure objection application WO2014/0442 in relation to E63/1679, and WO2014/0444 in relation to E63/1674, are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
MEMBER
22 December 2014

CaseChat Overview and Summary

The case before the court involved the Esperance Nyungar People, represented by Elaine Bullen and others, seeking to object to the grant of an exploration licence over their native title land. The respondent, Paul Winston Askins and Mining Tenements Investments Pty Ltd, proposed to conduct exploration activities under the grant of the licence. The matter was heard by the Federal Court of Australia, which had jurisdiction under the Native Title Act 1993. The court's task was to determine whether the Federal Court had the authority to hear the objection application and dismiss it if the court found that the Native Title Tribunal was the appropriate body to hear the matter.

The primary legal issue was whether the Federal Court had jurisdiction to hear the objection application. The court needed to decide if the objection application was a "future act" within the meaning of the Native Title Act, and if so, whether the application was subject to the expedited procedure. If the objection application was a future act, the court needed to determine whether it could hear the application or if the matter should have been heard by the Federal Court or the Native Title Tribunal. The court also had to consider whether the registered Indigenous Land Use Agreement (ILUA) between the parties affected the jurisdiction of the court.

The court found that the objection application was indeed a future act and was subject to the expedited procedure. However, the court held that the objection application should have been heard by the Native Title Tribunal rather than the Federal Court. The court reasoned that the Tribunal had exclusive jurisdiction to hear objection applications under the Native Title Act, and the Federal Court did not have the authority to hear the matter. The court also noted that the registered ILUA did not alter the jurisdiction of the Tribunal. Consequently, the court dismissed the objection application, finding that the Tribunal was the appropriate body to hear the matter.

The court ordered that the objection application be dismissed and that the matter be referred to the Native Title Tribunal for further consideration. The court did not make any orders regarding the grant of the exploration licence or the proposed exploration activities. The decision highlighted the importance of understanding the jurisdictional boundaries between the Federal Court and the Native Title Tribunal in matters involving native title and future acts.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established