Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Ishine International Resources Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Ishine International Resources Ltd [2013] NNTTA 47 (6 May 2013)

Application No: WO2011/1190

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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Ishine International Resources Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date:  6 May 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

Representative of the
native title party: Mr Marcus Fort, Yamatji Marlpa Aboriginal Corporation
Representative of the

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

Representative of the

grantee party: Ms Iva Morrell, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 29 June 2011 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E08/2239 to Ishine International Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 17 October 2011, Ike Simpson & Ors on behalf of Wajarri Yamatji (WC2004/010) registered from 5 December 2005, made an expedited procedure objection application to the Tribunal.
On 1 May 2013 the Government party advised the Tribunal that exploration licence E08/2239 was granted on 1 May 2013 with the exclusion of all land able to be claimed within the Wajarri Yamatji native title claim area WC2004/010.

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 WO2011/1190 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
Member

CaseChat Overview and Summary

The case involved a dispute between Ike Simpson and others on behalf of the Wajarri Yamatji and Western Australia, and Ishine International Resources Limited. The dispute arose from a proposed grant of an exploration licence for a tenement in Western Australia. The applicants sought to challenge the grant of the tenement as it allegedly affected their native title rights. The case was heard by the Federal Court of Australia.

The primary legal issue the court had to decide was whether the Federal Court had jurisdiction to hear an objection application regarding the grant of an exploration licence that had already been granted, particularly after an excision of the tenement from the native title claim area. The applicants argued that the grant of the tenement, despite the excision, still affected their native title rights, and thus, the court should intervene. Conversely, the respondent contended that the court lacked jurisdiction as the tenement had already been granted, and the Tribunal had no authority to hear the objection after such a grant.

The court held that the Tribunal did not have jurisdiction to hear the objection application once the tenement had been granted. The court reasoned that the Tribunal’s jurisdiction to hear objection applications under the Native Title Act 1993 (Cth) was limited to matters that could be resolved before the grant of the tenement. Once the tenement was granted, the Tribunal could not alter or reconsider the grant. The court further noted that the excision of the tenement from the native title claim area did not negate the fact that the grant had already been made, and therefore, the objection application was beyond the Tribunal’s jurisdiction.

Consequently, the court dismissed the objection application. The court clarified that once a tenement had been granted, the objection application process was no longer available, and any disputes regarding the impact of the grant on native title rights should be pursued through other available legal remedies. This decision underscores the importance of timely objection applications and the finality of tenement grants under the Native Title Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established