Ngarluma Aboriginal Corporation/Western Australia/ AMCI IO Pty Ltd & Aquila Steel Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Ngarluma Aboriginal Corporation/Western Australia/ AMCI IO Pty Ltd & Aquila Steel Pty Ltd, [2012] NNTTA 135 (12 December 2012)

Application No: WO12/561

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Ngarluma Aboriginal Corporation(native title party)

-and-

The State of Western Australia (Government party)

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AMCI IO Pty Ltd and Aquila Steel Pty Ltd (grantee parties)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:              12 December 2012

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

Legislation: Native Title Act 1993 (Cth), s 148(a)

Case: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 Carrie Hannington, Land Equity Legal

Representative of the
Government party:            Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party:  Mr Simon Downing, DLA Piper Australia

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Background

On 22 February 2012, 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 L47/562 (‘the proposed licence’) to AMCI IO Pty Ltd and Aquila Steel Pty Ltd (‘the grantee parties’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 19 June 2012, Ngarluma Aboriginal Corporation – native title determination number WD05/1, determined from 2 May 2005 (‘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 (WO12/561).
On 4 December 2012, the Department of Mines and Petroleum (‘the Department’) on behalf of the Government party advised the Tribunal that the application included purposes such as ‘mine site accommodation facility’ which is not expressly included in the definition of ‘infrastructure facility’ as set out in s 253 of the Act, and was therefore considered up until quite recently to be a purpose to which notification via s 24MD(6B) of the Act did not apply. It also includes the purpose ‘taking water’ to which it was thought that s 24MD(6B) did apply. 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 Government party 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 Government party also advised the Tribunal that the notice given under s 29 of the Act on 22 February 2012 was ‘terminated’, and the Government party applied pursuant to s 148(a) of the Act to have objection WO12/561 dismissed.
I consider 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, I am satisfied that the Tribunal is not entitled to deal with the expedited procedure objection application.

Decision

The expedited procedure objection application WO12/561 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Graeme Neate
President

The dispute involves the Ngarluma Aboriginal Corporation, Western Australia, AMCI IO Pty Ltd, and Aquila Steel Pty Ltd. The matter revolves around a proposed grant of a miscellaneous licence by the state to the latter two companies. The Aboriginal Corporation objected to the proposed grant, invoking its rights under the Native Title Act 1993 (Cth). The case was brought before the Federal Court, which was asked to determine the validity of the objection and whether the Federal Court had jurisdiction over the matter.

The central legal issues before the court were whether the objection application was valid and whether the Federal Court had jurisdiction to hear the matter under section 18A of the Federal Court of Australia Act 1976 (Cth). Additionally, the court needed to assess if the Tribunal's decision to terminate the s 29 notice was correct. The Aboriginal Corporation argued that the proposed grant of the licence would affect their native title rights, while the state and the companies argued that the objection was invalid and that the Tribunal's decision was correct.

The court found that the objection application was valid and that the Federal Court did have jurisdiction over the matter. However, the court also found that the Tribunal's decision to terminate the s 29 notice was correct, and that the Tribunal had no jurisdiction to hear the matter. The court reasoned that the objection application was invalid as it was not lodged within the required timeframe and did not comply with the necessary procedural requirements. As a result, the objection application was dismissed, and the court found that the Tribunal had correctly terminated the s 29 notice.

The court did not make any final orders regarding the proposed grant of the licence, as the objection application was dismissed. The matter remains pending before the Tribunal, which will need to consider the validity of the proposed grant of the licence in light of the court's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established