Barbara Sturt and Others on behalf of Jaru v Baracus Pty Ltd and Another - [2016] NNTTA 18

NATIONAL NATIVE TITLE TRIBUNAL

Barbara Sturt and Others on behalf of Jaru v Baracus Pty Ltd and Another [2016] NNTTA 18 (2 May 2016)

Application No: WO2015/0288

IN THE MATTER of the Native Title Act1993 (Cth)

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

Barbara Sturt and Others (Jaru) (WC2012/003) (native title party)

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The State of Western Australia (Government party)

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Baracus Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member
Place:  Perth
Date:  2 May 2016

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere substantially with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is not attracted

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32, 44H, 237
Mining Act 1978 (WA), s 66
Mining Regulations 1981 (WA), reg 20

Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metal Ltd [2012] NNTTA 48 (‘Birriliburu v Murchison Metal’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (‘Bunuba #2 v Mings Mining’)
Les Tullock & Ors/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tullock v Bushwin’)
Rosas v Northern Territory (2002) 169 FLR 330
WF (deceased) & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 (‘Wiluna v Kingx’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representative of the
native title party: Mr Tim Ognenis, Kimberley Land Council

Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office

Government party: Ms Lauren Pike, Department of Mines and Petroleum

Representative of the

grantee party: Mr Matthew Clohessy, Emerald Tenement Services

REASONS FOR DETERMINATION

The National Native Title Tribunal must determine whether or not the expedited procedure applies to the grant of exploration licence E80/4908 (‘the licence’) to Baracus Pty Ltd. The State Government of Western Australia included an expedited procedure statement in their notice about the grant, and the Jaru native title claim group lodged an objection to the statement.
By including the expedited procedure statement in their notice, the State asserts the activities permitted under the licence are not likely to interfere with the native title holder’s community or social activities, their sites or areas of particular significance, or involve major disturbance to the land and waters of the licence (see s 237(a), (b) and (c) of the Native Title Act 1993 (Cth). In objecting to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Barbara Sturt and Others on behalf of Jaru v Baracus Pty Ltd and Another [2016] NNTTA 18
Case: [2016] NNTTA 18
Decision Date: 2 May 2016

CaseChat Overview and Summary

In this case, the applicants sought an expedited procedure objection application in relation to a proposed grant of an exploration licence. The applicants, including Barbara Sturt, were asserting native title rights on behalf of the Jaru people. The respondents were Baracus Pty Ltd and another party, who were seeking to conduct exploration activities on land claimed by the applicants. The application was heard by the Federal Court of Australia.

The central legal issues the court had to address were whether the proposed exploration activities were likely to interfere substantially with the carrying on of community or social activities, interfere with sites of particular significance, or involve major disturbance to land or waters. The applicants argued that the exploration activities would adversely impact their native title rights, particularly their ability to carry out community and social activities, protect significant sites, and maintain the natural state of the land and waters. The respondents contended that the exploration activities would not substantially interfere with the applicants' native title rights and that the expedited procedure objection was not warranted.

The court found that the proposed exploration activities were not likely to interfere substantially with the carrying on of community or social activities, nor were they likely to interfere with sites of particular significance or involve major disturbance to land or waters. The court emphasised that the applicants had not provided sufficient evidence to support their claims of substantial interference with community activities or significant sites. Additionally, the court considered that the exploration activities would be conducted in a manner that would minimise disturbance to the land and waters. Consequently, the court held that the expedited procedure objection was not attracted.

The court dismissed the application, concluding that the proposed exploration activities would not substantially interfere with the applicants' native title rights. The court did not grant the expedited procedure objection, and the proposed exploration licence grant proceeded as planned.

Orders