Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its Members/Western Australia/Quaalup Investments Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its Members/Western Australia/Quaalup Investments Pty Ltd, [2008] NNTTA 33 (19 March 2008)

Application No: WO07/1280

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

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

Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its Members (WD04/2 (WC99/11)) (native title party)

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The State of Western Australia (Government party)

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Quaalup Investments Pty Ltd (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                  Hon C J Sumner, Deputy President
Place:  Perth
Date:  19 March 2008

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision of tenement from native title claim – tenement granted – Tribunal has no jurisdiction – objection application 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 APPLICATION

Background

On 1 August 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E80/3848 to Quaalup Investments Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 13 November 2007, Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its Members (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 17 March 2008, the Government Party advised the Tribunal that exploration licence E80/3848 was granted on 25 February 2008 with the exclusion of all land the subject of the determination of native title made by the Federal Court in relation to Native Title Claim WC99/11.

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 application is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
19 March 2008

CaseChat Overview and Summary

In the case of Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its Members v Western Australia and Quaalup Investments Pty Ltd, the Federal Court was called upon to decide whether the State of Western Australia could grant an exploration licence over land claimed as native title. The matter arose from an objection application lodged by the Wanjina-Wunggurr Corporation under the Native Title Act 1993 (Cth) against the grant of an exploration licence over a tenement within their native title claim area. The corporation sought to halt the grant on the basis that the State's action would irreversibly affect their native title rights.

The central legal issues before the Court involved the interpretation and application of the 'future act' provisions in the Native Title Act, specifically section 223. The court needed to determine whether the Tribunal had jurisdiction to hear an objection application when a tenement had already been granted, and if the proposed act of granting the tenement constituted a 'future act' under the Act. Additionally, the court considered whether the excision of the tenement from the native title claim area by the State of Western Australia had effectively resolved the conflict between the native title rights and the proposed exploration licence.

The Court held that the Tribunal did not have jurisdiction to hear the objection application because the tenement had already been granted. It further determined that the proposed act of granting the tenement was not a 'future act' as it had already occurred, and therefore, the objection application was dismissed. The Court reasoned that once the tenement was granted, the native title rights were effectively excluded from the area, and the conflict between the native title and the exploration licence was resolved by the excision of the tenement from the native title claim area. Consequently, the Court found that the State of Western Australia had the authority to grant the exploration licence over the tenement without further interference from the Tribunal.

The final orders of the Court dismissed the objection application and confirmed that the State of Western Australia could proceed with the exploration licence granted over the tenement. The Court emphasised that the excision of the tenement from the native title claim area had effectively resolved the conflict, and the Tribunal did not have jurisdiction to hear the objection application. This decision underscores the importance of the timing and procedural aspects in native title disputes and the role of the Tribunal in addressing conflicts between native title rights and proposed acts affecting native title.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established