Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd - [2019] NNTTA 6

NATIONAL NATIVE TITLE TRIBUNAL

Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd and Another [2019] NNTTA 6 (14 February 2019)

Application No:

WO2017/0560

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

Buurabalayji Thalanyji Aboriginal Corporation RNTBC (WCD2008/003)

(native title party)

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Squadron Resources Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

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

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	14 February 2019

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure – expedited procedure does not apply
Legislation:	Native Title Act 1993 (Cth) ss 29, 151, 237 Aboriginal Heritage Act 1972 (WA) s 5 Mining Act 1978 (WA) ss 61, 66
Cases:	Bunuba Dawangarri Aboriginal Corporation RNTBC v Elderberry Resources Pty Ltd and Another [2018] NNTTA 76 (Bunuba v Elderberry) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:	Matt Kinder, Murcia Pestell Hillard

Representative of the grantee party:

Yvette Collins, Hetherington Exploration and Mining Title Services Pty Ltd

Representatives of the Government party:

Francis Cardell-Oliver, State Solicitor’s Office
Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

I have been appointed to decide whether the State Government of Western Australia can, using the expedited procedure, grant exploration licence E08/2895 (the licence) to Squadron Resources Pty Ltd (Squadron). Under s 237 of the Native Title Act 1993 (Cth) (the Act), the State can assert the expedited procedure applies to a licence if the grant is not likely to:
(a)   interfere directly with the native title holders’ community or social activities; and
(b)   interfere with areas or sites of particular significance, in accordance with their traditions; and
(c)   involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned.
The native title party in this inquiry is the Buurabalayji Thalanyji Aboriginal Corporation Registered Native Title Body Corporate (BTAC), who hold non-exclusive native title in trust for the Thalanyji community over 98.5 percent of the licence. BTAC…

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: Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd [2019] NNTTA 6
Case: [2019] NNTTA 6
Decision Date: 14 February 2019

CaseChat Overview and Summary

In the case of Buurabalayji Thalanyji Aboriginal Corporation RNTBC v Squadron Resources Pty Ltd, the National Native Title Tribunal was required to determine whether the State of Western Australia could use the expedited procedure to grant exploration licence E08/2895 to Squadron Resources Pty Ltd. The Tribunal had to decide whether the grant of the licence was likely to interfere with the native title holders' community or social activities, interfere with sites or areas of particular significance, or involve major disturbance to the land or waters concerned. The native title party, Buurabalayji Thalanyji Aboriginal Corporation RNTBC (BTAC), lodged an objection to the State's assertion that the expedited procedure applies to the licence.

The Tribunal found that the grant of the licence was likely to interfere with Thalanyji's community or social activities, as the licence area contains three permanent waterholes that are significant for hunting and teaching cultural practices. The Tribunal also found that the grant of the licence was likely to interfere with sites or areas of particular significance, including the Ashburton River and the three waterholes, which have profound importance in Thalanyji creation beliefs and are associated with rituals and prohibitions. However, the Tribunal found that the grant of the licence was unlikely to involve major disturbance to the land or waters concerned.

Based on these findings, the Tribunal determined that the grant of exploration licence E08/2895 to Squadron Resources Pty Ltd was not an act attracting the expedited procedure. As a result, the State cannot grant the licence to Squadron without negotiating with BTAC.

The Tribunal's decision highlights the importance of considering the cultural significance of land and water to native title holders when assessing the potential impact of exploration activities. The decision also emphasizes the need for exploration companies to provide detailed information about their proposed activities and to consult with native title holders to minimize the potential for interference with their community and social activities and sites of particular significance.

The final orders of the Tribunal were that the grant of exploration licence E08/2895 to Squadron Resources Pty Ltd was not an act attracting the expedited procedure, and that the State could not grant the licence to Squadron without negotiating with BTAC. The Tribunal's decision provides important guidance for future expedited procedure applications and underscores the need for careful consideration of the cultural significance of land and water to native title holders in the assessment of exploration activities.

Orders