Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – relevance of Regional Standard Heritage Agreement signed by grantee party considered – application not frivolous or vexatious (s 147) – comment on the use of s 109 in consideration of s 237 matters – not likely to be interference with the carrying on of community or social activities, sites of particular significance or major disturbance to land – act attracts the expedited procedure.

Legislation:Native Title Act 1993 (Cth) ss 109, 147, 151(2), 237
Mining Act 1978 (WA) ss 20(5), 24, 26, 63, 66
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 57, 62

Cases:Andrews & Others v Northern Territory [2002] NNTTA 170; (2002) 170 FLR 138
Bruce Monadee & Ors (Ngarluma Indjibarndi) and Wilfred Hicks (Wong-goo-tt-oo)/Western Australia/Cossack Resources, NNTT WO02/290 & WO02/457, [2003] NNTTA 38 (26 February 2003), John Sosso
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103
Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Charles George Chitty, NNTT WO03/577, [2004] NNTTA 92 (1 October 2004), Daniel O’Dea
General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125
Jack Dann & Ors on behalf of the Unggumi Ngarinyin People/Western Australia/GPA Distributors Pty Ltd, [1995] NNTTA 43 (20 December 1995), Hon C J Sumner
Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso
Leonne Velickovic on behalf of the Widji People/Westex Resources Pty Ltd/Western Australia, NNTT WO03/386, [2004] NNTTA 13 (4 March 2004), Mr Dan O’Dea
Leonne Velickovic on behalf of Widji People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/6, [2004] NNTTA 70 (22 July 2004) Hon C J Sumner
Linda Champion and Others on behalf of the Central West Goldfields People; Leonne Velickovic and Others on behalf of the Widji People/New Hampton Goldfields Ltd/Western Australia, NNTT WF04/23, [2004] NNTTA 82 (14 September 2004), Hon C J Sumner
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54

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.

Continue reading Champion v Western Australia

Details

AGLC: Champion v Western Australia [2005] NNTTA 1
Case: [2005] NNTTA 1
Decision Date: 1 February 2005

CaseChat Overview and Summary

Champion v Western Australia was a case before the Federal Court, where the central dispute revolved around the proposed grant of an exploration licence within an area claimed by Champion as part of their native title rights. Champion sought to object to the grant under section 147 of the Native Title Act 1993, arguing that the proposed exploration would interfere with their native title rights. Western Australia, as the party responsible for the grant of the exploration licence, contested Champion’s objection. The court had to determine whether Champion’s application was frivolous or vexatious, and if the proposed exploration fell within the scope of activities that could be expedited under section 237 of the Act.

The legal issues before the court included whether Champion’s objection was frivolous or vexatious, the relevance of the Regional Standard Heritage Agreement in assessing Champion’s objection, and whether the proposed exploration was likely to interfere with Champion's native title rights to the extent that it warranted the application of the expedited procedure. The court was also required to consider the implications of section 109 of the Native Title Act in the context of Champion’s objection and the extent to which the proposed exploration might disturb Champion's community or social activities, or sites of particular significance.

In its reasoning, the court found that Champion’s objection was not frivolous or vexatious, as Champion had demonstrated a legitimate concern regarding their native title rights. The court considered the Regional Standard Heritage Agreement, noting its relevance in assessing the impact of the proposed exploration on Champion's native title rights. The court concluded that the proposed exploration was unlikely to result in significant interference with Champion's community or social activities, nor was it likely to cause major disturbance to the land or sites of particular significance. Therefore, the court held that the proposed exploration was not likely to interfere with Champion’s native title rights to such an extent as to warrant the application of the expedited procedure under section 237 of the Act.

The final orders of the court allowed Champion’s objection to proceed under the expedited procedure, ensuring that Champion’s native title rights were adequately protected during the exploration process. This decision underscored the importance of considering the implications of agreements like the Regional Standard Heritage Agreement and the necessity to balance Champion’s native title rights with the economic interests of Western Australia.

Orders