Barker J
In this matter, the Court answered two questions of law referred by the National Native Title Tribunal (Tribunal) arising out of an 'inquiry; the Tribunal was conducting in relation to an expedited procedure objection application made by the applicant under s 32(3) of the Native Title Act 1993 (Cth) (NTA).
The respondents to the claim were the State of Western Australia and Mings Mining Resources Pty Ltd (Mings).
Background
Mings applied for an exploration licence over an area (Eo4/2327) which overlapped the Bunuba #2 registered native title claim by an area of 3.48 hectares. The balance of the proposed tenement overlapped an area subject to the native title determination made in Wurrurmurra v State of Western Australia [2012] FCA 1399. The Bunuba Dawangarri Aboriginal Corporation RNTBC (BDAC) is the prescribed body corporate for this area.
The State gave notice of the act to grant Eo4/2327 to the Bunuba #2 claim group (the objector) and BDAC in September 2013. This included a statement that the State considered the act is an act attracting the expedited procedure pursuant to s 29(7) NTA. In December 2013, the objector lodged an objection against the expedited procedure statement.
In June 2014, the Tribunal made directions for an inquiry into the objector’s objection application. The State advised the Native Title Registrar that it had received a request from Mings on 21 August 2014 to excise the Bunuba #2 claim area from the area to be granted and that it proposed to grant the tenement subject to the excision on or after 12 September 2014.
The Tribunal proposed and the parties agreed that the Tribunal should refer questions of law to the Court pursuant to s 145 NTA.
Questions referred to the Court
The questions referred to the Court were:
Is the proposed grant of Eo4/2327, subject to the excision, an act to which the current s 29 notice applies?
If “yes”, is the scope of the inquiry into the expedited procedure objection concerned with the area of:
(a) The grant of Eo4/2327 being the proposed act in the s 29 notice?
(b) The grant of Eo4/2327, subject to the excision of the Bunuba #2 claim area?
(c) The Bunuba #2 claim overlap area?
Question 1
The respondents submitted that this question is predicated on the Tribunal’s jurisdiction to carry out an inquiry into the expedited procedure application being conditioned by the State’s compliance with s 29 NTA. The parties agreed that despite the proposed excision, the proposed act remains a future act as defined by s 233 of the NTA.
Barker J agreed and therefore concluded at [56] that the answer to Question 1 is yes.
In the course of the Tribunal’s inquiry, the State indicated that, in light of the objection made, it proposed (with Mings’ consent) to grant the tenement less the “excised” area. As a result, there was no current excision and no “act” that reflects such an excision; only a proposed excision which, on one view, may or may not happen.
Barker J observed, at [55], 'The more relevant question has to do with the function and powers of the Tribunal, as the arbitral body under the NTA, in circumstances where the State, following the commencement of an inquiry of this nature, proposes, with the grantee party’s consent, to actually do the act in a different manner from that notified. That question would appear to underlie Question 2.'
Question 2
The parties differences concerned the text and operation of the 'expedited procedure' provisions of the NTA. His Honour noted at [61] that the 'right to negotiate' under the NTA has the effect of replacing the general law right to claim an injunction preventing infringement of native title in land or waters the subject of a future act.
Barker J then turned to the scope of the Tribunal’s inquiry. His Honour observed that ss 139 and 75 of the NTA provide that the Tribunal conduct an inquiry into the “expedited procedure objection application”. As the claim group’s objection was not limited to the Bunuba#2 claim overlap area but concerned all the country on the map which included the exploration area, his Honour was of the view that the inquiry could not be limited to this area.
Therefore, (c) was not the right answer.
His Honour noted that the Tribunal must have regard to the criteria set out in s 237 of the NTA as an evidentiary issue when determining whether a registered native title claim will be affected in relevant ways by the act.
Barker J concluded at [115], the State's indication to the Tribunal that it would propose to grant the tenement, less the proposed “excised area”, may arguably be relevant to the Tribunal's inquiry but would not make the grounds of objection redundant because the objection is that the future act will affect the objector’s interests elsewhere in the proposed tenement area, outside the area in which native title is claimed.
Barker J answered Question 2, at [119], as follows:
'The scope of the inquiry into the expedited procedure objection is concerned with the area of (a) the grant of E04/2327 being the proposed act specified in the s 29 notice.