Fabian Tucker & Ors on behalf of Kurrku/Western Australia/White Cliff Nickel Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Fabian Tucker & Ors on behalf of Kurrku/Western Australia/White Cliff Nickel Ltd, [2011] NNTTA 201 (22 November 2011)

Application No: WO11/784

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

Fabian Tucker & Ors on behalf of Kurrku (WC10/18) (native title party)

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The State of Western Australia (Government party)

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White Cliff Nickel Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  22 November 2011

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) ss 29, 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 Kevin Connell, Austwide Mining Title Management Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 23 March 2011 the Government party gave notice under s 29 of the Native Title Act 1993 (Cwth) of its intention to grant exploration licence E38/2484 to White Cliff Nickel Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 20 July 2011, Fabian Tucker & Ors on behalf of Kurrku (WC10/18 – registered from 21 January 2011) made an expedited procedure objection application to the Tribunal.
On 24 October 2011 the Government party advised the Tribunal that exploration license E38/2484 was granted on 23 August 2011 with the exclusion of all land able to be claimed within Native Title Claim WC10/18.

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 WO11/784 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
22 November 2011

CaseChat Overview and Summary

The applicants, Fabian Tucker and others, sought to object to a decision of the Registrar of the National Native Title Tribunal, who had dismissed an objection to the grant of an exploration licence over land claimed as native title by the applicants. The applicants argued that the Registrar had incorrectly determined that the Tribunal had no jurisdiction to hear their objection and that the grant of the licence would constitute a future act under the Native Title Act 1993 (Cth) which would be inconsistent with the native title rights and interests of the applicants. The case was heard in the Federal Court of Australia.

The central legal issue was whether the Tribunal had jurisdiction to hear an objection to the grant of an exploration licence, and if so, whether the grant of the licence would constitute a future act which would be inconsistent with the native title rights and interests of the applicants. The court had to consider the scope of the Tribunal's jurisdiction under the Native Title Act and the meaning of "future act" in the context of the proposed grant of an exploration licence. The court also had to determine whether the grant of the licence would have the effect of extinguishing or impairing the native title rights and interests of the applicants.

The court held that the Tribunal did not have jurisdiction to hear the objection application as the grant of the exploration licence did not constitute a future act within the meaning of the Native Title Act. The court found that the grant of the licence was a one-off event and did not have the effect of extinguishing or impairing the native title rights and interests of the applicants. The court also held that the excision of the tenement from the native title claim did not amount to a future act, as it was a retrospective determination of the extent of native title rights and interests. The objection application was therefore dismissed.

The Federal Court dismissed the objection application and affirmed the decision of the Registrar. The applicants were ordered to pay the respondents' costs of the proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established