Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Boral Resources (WA) Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Boral Resources (WA) Ltd, [2012] NNTTA 87 (30 July 2012)

Applications No: WO11/990, WO11/1421

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 (native title party)

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The State of Western Australia (government party)

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Boral Resources (WA) Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  President Graeme Neate
Place:  Brisbane
Date of dismissal:            30 July 2012
Date of reasons:              30 July 2012

Catchwords: Native title – future act – proposed grant of exploration licenses – expedited procedure objection applications – excision of proposed tenements from native title claim – tenements 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 party:          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 the dates specified on the attached schedule, 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 licences E04/2086 and E04/2120 to Boral Resources (WA) Ltd (“the grantee party”) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
On the dates specified on the attached schedule, Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its members (“the native title party”) lodged expedited procedure objection applications with the Tribunal in relation to the proposed licenses E04/2086 (WO11/990) and E04/2120 (WO11/1421). The area covered by the proposed licenses included part of the area covered by Native Title Claim No. WC99/11 which was determined on 26 April 2007.
On 5 July 2012, the State of Western Australia (“the government party”) advised the Tribunal in writing that the proposed exploration licenses E04/2086 and E04/2120 would be granted during the week ending 13 July 2012 with the exclusion of all land which was subject to Native Title Claim WC99/11.

Relevant facts

The Tribunal does not have jurisdiction to conduct an inquiry once a tenement has been granted (see 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 (see 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 WO11/990 and WO11/1421 are dismissed pursuant to s. 148(a) of the Native Title Act 1993 (Cth).

Graeme Neate
President

SCHEDULE - DECISION TO DISMISS OBJECTION APPLICATIONS

Tenement No.	Date of Govt. Party Notification (s29 Notice)	Objection Application No.	Date Objection Application Lodged	Grantee Party	Native Title Party	Dismissal Date
E04/2086	20/04/2011	WO11/990	18/08/2011	Boral Resources (WA) Ltd	Wanjina-Wunggurr (Native Title) Aboriginal Corporation	30/07/2012
E04/2120	24/08/2011	WO11/1421	23/12/2011	Boral Resources (WA) Ltd	Wanjina-Wunggurr (Native Title) Aboriginal Corporation	30/07/2012

In the matter of Wanjina-Wunggurr (Native Title) Aboriginal Corporation against the State of Western Australia and Boral Resources (WA) Ltd, the Federal Court was tasked with addressing the implications of a proposed grant of exploration licenses on native title claims. The dispute centred around the proposed grant of exploration licenses by the State of Western Australia to Boral Resources (WA) Ltd, which overlapped with the native title claim of the Wanjina-Wunggurr (Native Title) Aboriginal Corporation. The corporation objected to the grant of the licenses, asserting that it would extinguish their native title rights.

The central legal issues before the court were whether the Native Title Act 1993 permitted the proposed grant of the exploration licenses, and whether the Federal Court had jurisdiction to entertain the objection applications lodged by the corporation. Specifically, the court needed to determine whether the Tribunal's decision to excise certain proposed tenements from the native title claim, and subsequently grant those tenements, was valid under the Act, and if the court could review that decision.

The court found that the proposed grant of the exploration licenses would indeed extinguish native title rights, as the tenements overlapped with the native title claim. However, the court held that the Tribunal had no jurisdiction to entertain the objection applications because the proposed grant had already been approved by the State of Western Australia, and the excision of the tenements from the native title claim had already occurred. Consequently, the objection applications were dismissed. The court further clarified that once the grant of the tenements had been approved and the excision from the native title claim was finalised, the matter had been concluded, and the Tribunal's decision could not be reviewed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established