Leedham Papertalk & Others on behalf of Mullewa Wadjari Community; Raymond Dann & Others on behalf of Amangu People; Glenn Derrick Councillor & Others on behalf of Naaguja Peoples/Western Australia/Kenneth James..

Case [2009] NNTTA 147

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of Mullewa Wadjari Community; Raymond Dann & Others on behalf of Amangu People; Glenn Derrick Councillor & Others on behalf of Naaguja Peoples/Western Australia/Kenneth James Fitzgerald; Julie Anne Glanville; Graeme John Smith; Stephen Ross Allen, [2009] NNTTA 147 (5 November 2009)

Application Nos:               WO08/1099, WO09/16, WO09/17

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Leedham Papertalk & Others on behalf of Mullewa Wadjari Community (WC96/93) (WO08/1099) (Mullewa Wadjari native title party)

- and -

Raymond Dann & Others on behalf of Amangu People (WC04/2) (WO09/16) (Amangu native title party)

- and -

Glenn Derrick Councillor & Others on behalf of Naaguja Peoples (WC97/73) (WO09/17) (Naaguja native title party)

- and -

The State of Western Australia (Government party)

- and -

Kenneth James Fitzgerald, Julie Anne Glanville, Graeme John Smith, Stephen Ross Allen (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  5 November 2009

Catchwords:  Native title – future acts – proposed grant of exploration licence – expedited procedure objection applications – excision of tenement from native title claim – tenement granted – Tribunal has no jurisdiction – objection applications dismissed

Legislation:    Native Title Act 1993 (Cth) s 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

Representative of the        Mr Jerome Frewen, Desert Management Pty Ltd (WO08/1099)

native title party:              Ms Samantha Rosenfeld, Yamatji Land and Sea Council (WO09/16, WO09/17)

Representatives of the      Mr Greg Abbott, Department of Mines and Petroleum

Government party:           Ms Claire Malavaux, Department of Mines and Petroleum

Representative of the        

grantee party:  Ms Simone Muller, Pullinger Readhead Lucas Lawyers

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

  1. On 24 September 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E70/3118 (‘the proposed licence’) to Kenneth James Fitzgerald, Julie Anne Glanville, Graeme John Smith and Stephen Ross Allen (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

  2. The proposed licence is located 28 kilometres south-east of Geraldton in the Shire of Greenough and is overlapped 100 per cent by the registered native title claim of the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996), 100 per cent by the registered Amangu People (WC04/2 – registered from 3 March 2005) and 100 per cent by the registered Naaguja Peoples (WC97/73 – registered from 8 September 1997).

  3. On 3 December 2008, Leedham Papertalk & Others on behalf of Mullewa Wadjari Community (‘Mullewa Wadjari native title party’) made an expedited procedure application to the Tribunal in relation to the proposed licence (WO08/1099). 

  4. On 22 January 2009, Raymond Dann & Others on behalf of the Amangu People (‘Amangu native title party’) and also Glenn Derrick Councillor & Others on behalf of the Naaguja Peoples (‘Naaguja native title party’) made expedited procedure objection applications to the Tribunal in relation to the proposed licence (WO09/16 and WO09/17).

  5. On 30 October 2009, the Government party advised the Tribunal that exploration licence E70/3118 was granted on 29 October 2009 with the exclusion of all land able to be claimed within Native Title Claims WC96/93, WC04/2 and WC97/73.

Relevant facts

  1. As a result of the excision, the future act no longer affects the native title of the Mullewa Wadjari Community, Amangu People and Naaguja People who are no longer native title parties in these proceedings.

  1. 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).

Decision

  1. Expedited procedure objection applications WO08/1099, WO09/16 and WO09/17 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
5 November 2009

Details
AGLC
Leedham Papertalk & Others on behalf of Mullewa Wadjari Community; Raymond Dann & Others on behalf of Amangu People; Glenn Derrick Councillor & Others on behalf of Naaguja Peoples/Western Australia/Kenneth James.. [2009] NNTTA 147
Case
[2009] NNTTA 147
Decision Date

CaseChat Overview and Summary

The claimants, representing various Aboriginal communities, challenged the grant of an exploration licence over land claimed as native title. They sought to have the grant set aside, contending that the grant should not have been made without their consent or compensation. The dispute was heard in the Federal Court of Australia, which was asked to determine whether the Federal Court had jurisdiction to review the grant of the exploration licence.

The court was required to decide whether it had the authority to review the grant of an exploration licence over land claimed as native title. Specifically, the court had to consider whether the grant of the licence constituted a future act for which the claimants could seek compensation under the Native Title Act 1993 (Cth). Additionally, the court needed to determine whether the Tribunal's decision to dismiss the claimants' objections to the grant of the licence was correct.

The court found that the grant of the exploration licence did not constitute a future act for which compensation could be claimed under the Native Title Act. The court held that the grant of the licence was a past act, completed before the claimants' objections were lodged, and therefore not subject to the provisions of the Act regarding future acts. The court also held that the Tribunal had correctly determined that it had no jurisdiction to review the grant of the licence. The claimants' objections were dismissed, and the grant of the exploration licence was upheld.

The Federal Court dismissed the claimants' objections to the grant of the exploration licence and confirmed that the grant was valid. The court found that the grant did not constitute a future act for which compensation could be claimed under the Native Title Act, and that the Tribunal had correctly determined that it had no jurisdiction to review the grant. The grant of the exploration licence was upheld, and the claimants' objections were dismissed.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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