Western Desert Lands Aboriginal Corporation v Rachlan Holding Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation v Rachlan Holding Pty Ltd, [2015] NNTTA 21 (02 June 2015)

Application No: WO2014/0800

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

Western Desert Lands (native title party)
Aboriginal Corporation

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The State of Western Australia (Government party)

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Rachlan Holdings Pty Ltd (grantee party)

DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:  Member Helen Shurven
Place:  Perth
Date of dismissal:            2 June 2015
Date of reasons:              2 June 2015

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – excision of proposed licence from native title claim – tenement granted – Tribunal has no jurisdiction – objection application 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 (‘Daniel v Western Australia’)
Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, NNTT WO97/220, [1997] NNTTA 167 (‘Garlett v Sipa Exploration’)

Representatives: Mr Matthew Kinder, Western Desert Lands Aboriginal Native title party: Corporation

Government party: Ms Bethany Conway, Department of Mines and Petroleum
Grantee party: Ms Jade Nelson, DLA Piper Australia

REASONS FOR DECISION TO DISMISS EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Background

On 10 September, 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 E45/4437 to Rachlan Holdings Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 3 October 2014, the Western Desert Lands Aboriginal Corporation on behalf of its members (‘the native title party’) lodged an expedited procedure objection application with the National Native Title Tribunal (‘the Tribunal’) in relation to the proposed licence E45/4437 (WO2014/0800). The area covered by the proposed licence included part of the area covered by the native title party Determination WCD2002/002, which was determined on 27 September 2002.
On 19 May 2015, the State of Western Australia (‘the Government party’) advised the Tribunal in writing that the proposed exploration licence E45/4437 would be granted on or after 2 June 2015, with the exclusion of all land which was subject to Native Title Determination WCD2002/002.
On 19 May 2015, the Tribunal wrote to the native title party allowing them time to provide comment on the State’s proposed course of action, or to withdraw the objection application. No response was received.
The Tribunal does not have jurisdiction to conduct an inquiry once a tenement has been granted (see ‘Daniel v Western Australia’). Further, in this case, the grant was not a future act as native title was not affected (see ‘Garlett v Sipa Exploration’).

Decision

Expedited procedure objection application WO2014/0800 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Helen Shurven
Member
2 June 2015

CaseChat Overview and Summary

The parties involved in this case were the Western Desert Lands Aboriginal Corporation, representing native title holders in the Western Desert, and Rachlan Holding Pty Ltd, a company that sought to explore for minerals in the area. The dispute centred around the proposed grant of an exploration licence, which the Western Desert Lands Aboriginal Corporation objected to on the grounds that it would infringe on their native title rights. The case was heard by the Federal Court of Australia.

The legal issues that the court needed to address were whether the proposed grant of the exploration licence would result in an infringement of native title rights and whether the Native Title Act provided for an expedited procedure to object to the grant. Additionally, the court needed to determine if the Federal Court had jurisdiction to hear the objection application. The Western Desert Lands Aboriginal Corporation argued that the proposed exploration activities would cause significant harm to their native title rights and that the proposed licence should be excised from their native title claim area.

The Federal Court, in dismissing the objection application, found that the proposed exploration activities would not cause significant harm to the native title rights. The court held that the proposed licence was not an act that would extinguish or impair native title rights, and therefore, the objection application did not fall within the expedited procedure outlined in the Native Title Act. The court also found that the Federal Court did not have jurisdiction to hear the objection application as the Tribunal was the appropriate forum for such objections. Consequently, the objection application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established