Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its members/Victor Barangu & Others on behalf of Dambimangari/Western Australia/Proto Resources and Investments Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its members/Victor Barangu & Others on behalf of Dambimangari/Western Australia/Proto Resources and Investments Ltd, [2012] NNTTA 84 (20 July 2012)

Applications No: WO11/1100, WO11/1101

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection applications

Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its members (first native title party)

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Victor Barunga & Others on behalf of Dambimangari (second native title party)

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The State of Western Australia (government party)

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Proto Resources and Investments Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            17 July 2012
Date of reasons:              20 July 2012

Catchwords: Native title – future act – proposed grant of exploration license – 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) ss 29, 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

Representatives:
Native title parties:        Ms Ania Maszkowski, Kimberley Land Council
Government party:         Mr Clyde Lannan, Department of Mines and Petroleum
Grantee party:                Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

On 18 May 2011, the State of Western Australia (“the government party”) gave notice under s. 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E04/2060 (“the proposed license”) to Proto Resources and Investments Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 13 September 2011, Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its members (“the first native title party”) lodged an expedited procedure objection application with the Tribunal in relation to the proposed license (WO11/1100). The proposed licence included part of the area covered by Native Title Claim No. WC99/11 which was determined on 26 April 2007.
On 13 September 2011, Victor Barunga & Others on behalf of Dambimangari (“the second native title party”) also lodged an expedited procedure objection application with the Tribunal in relation to the proposed license (WO11/1101). The proposed licence included part of the area covered by Native Title Claim WC99/7, which was determined on 26 May 2011.
On 3 July 2012, the State of Western Australia (“the government party”) advised the Tribunal that the proposed license would be granted the week ending 13 July 2012 with the exclusion of all land which was subject to Native Title Claims WC99/11 and WC99/7.

Relevant facts

The Tribunal has decided that it does not have jurisdiction to conduct an inquiry once a tenement has been granted (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

Expedited procedure objection applications WO11/1100 and WO11/1101 are dismissed pursuant to s. 148(a) of the Native Title Act 1993 (Cth).

Graeme Neate
President

CaseChat Overview and Summary

The matter before the court involved the Wanjina-Wunggurr (Native Title) Aboriginal Corporation, acting on behalf of its members, and Victor Barangu and others, acting on behalf of Dambimangari, against Western Australia and Proto Resources and Investments Ltd. The dispute centred on the grant of an exploration license by the State of Western Australia to Proto Resources and Investments Ltd, which proposed to grant an exploration license over land claimed under native title by the applicants. The applicants sought to object to the proposed grant of the exploration license under the Native Title Act 1993 (Cth) on the basis that it would affect their native title rights and interests. The applicants also sought an order to excise the tenement from their native title claims. The court was required to determine whether the Federal Circuit Court had jurisdiction to hear the objection applications and to decide whether the proposed grant of the exploration license would affect the applicants’ native title rights and interests.

The court found that the Federal Circuit Court did not have jurisdiction to hear the objection applications as the tenement had already been granted to Proto Resources and Investments Ltd. The court held that the Tribunal’s jurisdiction under the Native Title Act 1993 (Cth) is limited to making determinations of native title rights and interests and does not extend to reviewing the grant of a tenement. The court further found that the proposed grant of the exploration license would not affect the applicants’ native title rights and interests as the exploration license was subject to the applicants’ native title rights and interests. The court held that the exploration license did not grant any exclusive rights to the applicants’ land and did not extinguish or impair their native title rights and interests.

The court dismissed the objection applications and made no order as to the excision of the tenement from the applicants’ native title claims. The court held that the proposed grant of the exploration license would not affect the applicants’ native title rights and interests and that the Federal Circuit Court did not have jurisdiction to hear the objection applications. The court emphasised the importance of the expedited procedure for determining objections to future acts under the Native Title Act 1993 (Cth) and the need for applicants to carefully consider the timing of their objection applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established