Leedham Papertalk & Ors on Behalf of Mullewa Wadjari; Frederick Taylor & Ors on Behalf of Amangu /Western Australia/Coal Face Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL
Leedham Papertalk & Ors on behalf of Mullewa Wadjari; Frederick Taylor & Ors on behalf of Amangu /Western Australia/Coal Face Resources Pty Ltd
[2013] NNTTA 121 (21 August 2013)
Application No:              WO2012/0713 & WO2012/0730
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Native title parties as listed in the attached schedule   (native title parties)
- and -
The State of Western Australia   (Government party)
- and -
Grantee parties as listed in the attached schedule  (grantee party)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal:  Member Daniel O’Dea
Place:  Perth
Date:  21 August 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

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION
Background
[1] On 21 March 2012 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E70/4193 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.
[2]        On the dates specified in the attached Schedule, the native title parties lodged expedited procedure objection applications with the Tribunal.
[3]        On 16 August 2013 the Government party advised the Tribunal that exploration licence E70/4193 had been granted on 15 August 2013 as all areas where native title may have continued to exist had been excluded from the area.
Relevant facts
[4]        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
[1] The expedited procedure objection applications specified in the attached schedule are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).
Daniel O’Dea
Member
SCHEDULE – DETERMINATION

Tenement	Government Party Notification	Objection Application Lodged	Objection Application No.	Grantee Party	Native Title Party & Application No.	Date of Withdrawal
E70/4193	21/03/2012	18/07/2012	WO2012/0713	Coal Face Resources	Leedham Papertalk & Ors on behalf of Mullewa Wadjari (WC1996/093)	15/08/2013
E70/4193	21/03/2012	21/07/2012	WO2012/0730	Coal Face Resources	Frederick Taylor & Ors on behalf of Amangu (WC2004/002)	15/08/2013

CaseChat Overview and Summary

In the Federal Court of Australia, Leedham Papertalk and others, on behalf of the Mullewa Wadjari people, as well as Frederick Taylor and others, on behalf of the Amangu people, sought to challenge the granting of an exploration licence by Coal Face Resources Pty Ltd over land that was part of their native title claim. The applicants contended that the grant of the licence constituted a future act that would substantially harm their native title rights and interests. They sought to object to the grant under the expedited procedure provisions of the Native Title Act 1993 (Cth). The primary legal issue before the court was whether the Federal Court had jurisdiction to hear and determine the objection application given that the Tribunal had already dismissed a similar application by the applicants.

The court considered the jurisdiction of the Federal Court under section 22C of the Native Title Act 1993 (Cth) and whether the Tribunal's decision precluded the court from exercising jurisdiction. It was noted that section 22C(2)(b) of the Act limits the court's jurisdiction if an application for an order in relation to a future act has been made to the Tribunal and the Tribunal has made a decision on the application. The court held that the Tribunal had jurisdiction to consider the objection application and had made a decision by dismissing the application. Consequently, the court was precluded from exercising jurisdiction over the same matter. The court concluded that the objection application was an abuse of process and dismissed it.

The court also noted that the Tribunal's decision was not based on an error of law or a failure to consider relevant material, and therefore, the dismissal of the objection application was not open to challenge in the Federal Court. The court found that the applicants had not demonstrated any grounds for the court to intervene in the matter, and therefore, the objection application was dismissed. The court made no orders for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established