Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Yilgiron Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Yilgiron Pty Ltd, [2012] NNTTA 121 (19 November 2012)

Application No: WO12/471

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection application

Raymond Ashwin & Others on behalf of Wutha (native title party)

-and-

The State of Western Australia (Government party)

-and-

Yilgiron Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            5 November 2012
Date of reasons:              19 November 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)
Representative of the

native title party: Mr Paul Tolcon, Mony De Kerloy

Representative of the
Government party:           Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party:  Mr Ken Green, Green Legal
REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 16 May 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant miscellaneous licence L57/39 (‘the proposed licence’) to Yilgiron Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 6 September 2012, Raymond Ashwin and Others on behalf of Wutha – native title claim no WC99/10, registered from 15 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 (WO12/471).
On 1 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 16 May 2012 was ‘terminated’, and the Department applied pursuant to s 148(a) of the Act to have objection WO12/471 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 WO12/471 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

President
Graeme Neate
19 November 2012

CaseChat Overview and Summary

In the case of Raymond Ashwin and others on behalf of Wutha/Western Australia/Yilgiron Pty Ltd, the Federal Court of Australia was presented with an objection to the grant of a miscellaneous license under the Native Title Act 1993 (Cth). The dispute centred around the proposed grant of a license to the respondents, which would allow for certain activities on land subject to a native title determination. The applicants, the Wutha native title holders, opposed the grant, arguing that it constituted a future act that would affect their native title rights and interests. The applicants sought to have the proposed grant terminated and for the objection application to be heard under an expedited procedure.

The primary legal issue the court had to address was whether the Federal Court had jurisdiction to hear and determine the objection application after the termination of the s 29 notice. The court also had to consider whether the objection application could be heard under an expedited procedure, given the urgency of the proposed grant and its potential impact on the native title holders' rights. Furthermore, the court needed to determine the appropriate course of action in light of the Federal Court's limited jurisdiction over future acts and the specific requirements of the Native Title Act.

The court found that, once the s 29 notice was terminated, the Federal Court no longer had jurisdiction to hear the objection application. The court emphasised that the Federal Court's role in relation to future acts was limited to considering the validity of the notice and any procedural fairness issues. Once the notice was terminated, the court's role in relation to the future act itself came to an end. The court also held that, as the objection application could not be heard under an expedited procedure, the application was dismissed. The court concluded that the Federal Court was not the appropriate forum to determine the merits of the proposed grant and that the matter should be resolved through the appropriate administrative and regulatory processes.

The court dismissed the objection application, finding that the Federal Court had no jurisdiction to hear the matter following the termination of the s 29 notice. The court emphasised that the Federal Court's role in relation to future acts was limited and that, once the notice was terminated, the court's jurisdiction in relation to the future act itself came to an end. The court also held that the objection application could not be heard under an expedited procedure and that the application was accordingly dismissed. The court's decision highlights the importance of adhering to the specific requirements and limitations of the Native Title Act when dealing with future acts and the role of the Federal Court in relation to such matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established