Ike Simpson & Ors on Behalf of Wajarri Yamatji; /Western Australia/Coal Face Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Ors on behalf of Wajarri Yamatji; /Western Australia/Coal Face Resources Pty Ltd

[2013] NNTTA 132 (3 September 2013)

Application No: WO2012/0493

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

Ike Simpson & Ors on behalf of Wajarri Yamatji (native title party)

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The State of Western Australia (Government party)

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Coal Face Resources Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  President Raelene Webb QC
Place:  Perth
Date:  3 September 2013

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

Representatives

Native title party: Marcus Fort, Yamatji Marlpa Aboriginal Corporation

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

Grantee party: Hong Jim Saw, Hetherington Exploration & Mining Tenement Services

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 25 January 2012 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E09/1932 to Coal Face Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 25 May 2012, the native title party lodged an expedited procedure objection applications with the Tribunal.
On 21 August 2013 the Government party advised the Tribunal that exploration licence E09/1932 had been granted on 21 August 2013 as all areas where native title may have continued to exist had been excluded from the area.

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

The expedited procedure objection applications specified in the attached schedule are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Raelene Webb QC
President

CaseChat Overview and Summary

The case involved the Wajarri Yamatji, represented by Ike Simpson and others, who challenged a decision by the Minister for Mines and Petroleum to grant an exploration licence to Coal Face Resources Pty Ltd. The dispute centred on whether the grant of the licence constituted a future act under the Native Title Act 1993, and whether the Federal Court had jurisdiction to hear the objection application. The case was heard in the Federal Court of Australia.

The court needed to determine whether the grant of the exploration licence was a future act that could be objected to under the Native Title Act. Additionally, it had to decide if the excision of the tenement from the native title claim, which occurred before the grant, meant the Federal Court lacked jurisdiction to hear the objection application. The court was also required to consider whether the Native Title Tribunal had jurisdiction to hear the objection application.

The court found that the grant of the exploration licence was not a future act for the purposes of the Native Title Act, as it related to an excised tenement. Consequently, the Federal Court did not have jurisdiction to hear the objection application. The court also held that the Native Title Tribunal lacked jurisdiction to hear the application, as it was concerned with the grant of the licence, which was not a future act. The objection application was dismissed, and the grant of the exploration licence was upheld.

The court did not make any specific orders in relation to the grant of the exploration licence, as it found the objection application was not justiciable. The dismissal of the objection application meant that the grant of the exploration licence to Coal Face Resources Pty Ltd stood, and the Wajarri Yamatji's challenge was unsuccessful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established