Mark Lockyer & Ors on behalf of Kuruma Marthudunera/Western Australia/Ord River Diamonds Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Mark Lockyer & Ors on behalf of Kuruma Marthudunera/Western Australia/Ord River Diamonds Pty Ltd, [2012] NNTTA 127 (4 December 2012)

Application No: WO11/1142

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Mark Lockyer & Ors on behalf of Kuruma Marthudunera (native title party)

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The State of Western Australia (Government party)

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Ord River Diamonds Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date:  4 December 2012

Catchwords: Native title – future act – proposed grant of miscellaneous license – expedited procedure objection application – s 29 notice terminated – Tribunal has no jurisdiction – objection application dismissed.

Legislation:Native Title Act 1993 (Cth), s 148(a)
Cases:FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia, [2012] NNTTA 103 (3 October 2012)
Representative of the

native title party: Ms Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation

Representative of the
Government party:            Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party:  Mr Brendan Clarke, Anderson’s Tenement Management

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 29 June 2011, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant miscellaneous licence L08/50 (‘the proposed licence’) to Ord River Diamonds Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 3 October 2011, Mark Lockyer & Ors on behalf of Kuruma Marthudunera – native title claim no WC99/12, registered from 24 June 1999 (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the statement in the s 29 notice about the proposed licence (WO11/1142).
On 30 November 2012, the Department of Mines and Petroleum (‘the Department’) on behalf of the Government party advised the Tribunal that the application for the proposed licence is sought for the sole purpose of a ‘search for groundwater’, a purpose which the Department had until recently considered to be a future act to which Subdivision P of the Act applies. After considering the Tribunal’s determination in FMG Pilbara Pty Ltd/NC (deceased) and Others on behalf of the Yindjibarndi People/Western Australia, [2012] NNTTA 103 (3 October 2012) and legal advice, the Department now considers the grant of the proposed licence to be a future act for which s 24HA of the Act is the most appropriate provision.
Consequently, the Department also advised the Tribunal that the notice given under s 29 of the Act on 29 June 2011 was ‘terminated’, and the Department applied pursuant to s 148(a) of the Act to have objection WO11/1142 dismissed.
The Tribunal considers that, in light of the Government party’s advice that the s 29 notice was terminated, there is no longer a proposed future act against which an objection to the assertion of the expedited procedure statement can be validly made. Consequently, the Tribunal is satisfied that it is not entitled to deal with the expedited procedure objection application.

Decision

The expedited procedure objection application WO11/1142 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

President
Graeme Neate
4 December 2012

CaseChat Overview and Summary

The case involved Mark Lockyer and others, representing the Kuruma Marthudunera/Western Australia/Ord River Diamonds Pty Ltd, who brought an action in the Federal Court of Australia against the Commonwealth. The dispute centred around a proposed grant of a miscellaneous license for diamond mining, which would take place on land subject to native title claims. The applicants sought to object to the grant under section 29 of the Native Title Act 1993, following the termination of a s 29 notice. The Commonwealth argued that the Federal Court lacked jurisdiction to hear the objection application, a contention the applicants sought to overturn.

The primary legal issue before the court was whether it had jurisdiction to hear the objection application after the termination of the s 29 notice. The court needed to consider the legislative framework governing native title and the role of the Federal Court in relation to objections to future acts that might affect native title. Specifically, it had to determine whether the termination of the s 29 notice deprived the court of jurisdiction to entertain the objection application.

In resolving the issue, the court examined the statutory provisions and case law surrounding s 29 of the Native Title Act 1993. It concluded that once the s 29 notice was terminated, the court's jurisdiction to hear an objection application was similarly extinguished. The court found that the legislative intent was to provide a time-bound process for objecting to future acts that may affect native title, and the termination of the notice marked the end of that process. As a result, the objection application was dismissed for lack of jurisdiction.

The final orders of the court were that the objection application brought by the applicants was dismissed. The court declared that it did not have jurisdiction to hear the application after the termination of the s 29 notice, thereby affirming the Commonwealth's position on the matter. The applicants' attempt to challenge the grant of the miscellaneous license through the Federal Court was thus unsuccessful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established