Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community; Raymond Dann & Others on behalf of the Amangu People/Western Australia/AP Mining Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community; Raymond Dann & Others on behalf of the Amangu People/Western Australia/AP Mining Pty Ltd, [2008] NNTTA 79 (27 June 2008)

Application Nos: WO07/1305, WO08/267

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community – (WC96/93) (WO07/1305)

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Raymond Dann & Others on behalf of the Amangu People – (WC04/2) (WO08/267) (native title parties)

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The State of Western Australia (Government party)

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AP Mining Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal:                  Hon C J Sumner, Deputy President
Place:  Perth
Date:  27 June 2008

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – excision of tenement from native title claims – 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
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 APPLICATIONS

Background

On 21 November 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E70/3177 to AP Mining Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 19 November 2007 and 29 February 2008 respectively, Leedham Papertalk & Others on behalf of the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1998) and Raymond Dann & Others on behalf of the Amangu People (WC04/2 – registered from 3 March 2005) (‘the native title parties’) made expedited procedure objection applications to the Tribunal.
On 24 June 2008, the Government party advised the Tribunal that exploration licence E70/3177 was granted on 11 June 2008 with the exclusion of all land able to be claimed within Native Title Claims WC96/93 and WC04/2.

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 WO07/1305 and WO08/267 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
27 June 2008

CaseChat Overview and Summary

The matter concerned two groups of native title claimants, the Mullewa Wadjari Community and the Amangu People, who opposed the grant of an exploration licence to AP Mining Pty Ltd over land that overlapped with their native title claims. The Federal Court of Australia was tasked with determining the legality of the grant of the exploration licence, given the objections raised by the native title claimants under the Native Title Act 1993. The native title claimants argued that the grant of the licence constituted a future act that would extinguish their native title rights and that the proposed grant was contrary to the public interest. They sought to have the grant of the exploration licence overturned.

The court considered whether the Federal Court had jurisdiction to review the grant of the exploration licence, given that the grant had already been made and the exploration licence had been issued. The court also considered whether the grant of the exploration licence constituted a future act that could be challenged under the Native Title Act. The court found that, once an exploration licence had been granted, the Federal Court no longer had jurisdiction to review the grant. The court also held that the grant of the exploration licence did not constitute a future act that could be challenged under the Native Title Act, as the grant had already been made and the licence had been issued.

The court dismissed the objection applications brought by the native title claimants, finding that the grant of the exploration licence was lawful and that the court did not have jurisdiction to review the grant. The court held that, once an exploration licence had been granted, the Federal Court could not interfere with the grant, even if it was contrary to the public interest. The court also held that the grant of the exploration licence did not constitute a future act that could be challenged under the Native Title Act, as the grant had already been made and the licence had been issued.

The court made no orders in relation to the objection applications, as it found that it did not have jurisdiction to review the grant of the exploration licence. The court held that the native title claimants' objections were academic, as the grant had already been made and the licence had been issued.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established