Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Marlee Base Metals Ltd & Another - [2021] NNTTA 9

NATIONAL NATIVE TITLE TRIBUNAL

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Marlee Base Metals Ltd & Another [2021] NNTTA 9 (16 March 2021)

Application No:

WO2019/1052, WO2020/0022

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

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

Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 (WC2004/010)

(native title party)

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Marlee Base Metals Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Glen Kelly, Member
Place:	Perth
Date:	16 March 2021

Catchwords:	Native title – future acts – proposed grants of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites or area of particular significance – whether acts likely to involve major disturbance to land or waters – expedited procedure – the acts are acts attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) Environmental Protection Act 1986 (WA) Mining Act 1978 (WA) ss 24, 24A, 25, 57, 58, 66 Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Rights in Water and Irrigation Act 1914 (WA)
Cases:	Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (Wajarri Yamatji v WA) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v WA) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Freddie v WA) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi v WA)
Representatives of the native title party:	Patricia Edwards, Heritage Link Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation

Representative of the grantee party:

Jacob Loveland, All Mining Legal Pty Ltd

Representatives of the Government party:

Reywin Rico, State Solicitor’s Office

Lauren Pike, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

The State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licences E09/2363 and E70/5289 (the licences) to Marlee Base Metals Pty Ltd (Marlee Base Metals). The notices for the licences included a statement that the grant is an act attracting the expedited procedure (see s 32 of the NTA). By including this statement, the Government party asserts the grant of the licences is not likely to, in summary:
(a)interfere directly with the community or social…

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: Colin Hamlett & Ors on behalf of Wajarri Yamatji #1 v Marlee Base Metals Ltd & Another [2021] NNTTA 9
Case: [2021] NNTTA 9
Decision Date: 16 March 2021

CaseChat Overview and Summary

Colin Hamlett and others on behalf of the Wajarri Yamatji people initiated proceedings against Marlee Base Metals Ltd and the State of Western Australia in the National Native Title Tribunal (NNTT) concerning the grant of exploration licenses E09/2363 and E70/5289. The Wajarri Yamatji people, native title holders, opposed the grant of these licenses, arguing that the proposed exploration activities would interfere with their community and social activities and sites of particular cultural significance. The key legal issue was whether the grant of these licenses would interfere with the native title holders' rights as outlined in section 237 of the Native Title Act 1993 (Cth). The NNTT had to determine whether the exploration activities were likely to interfere with the native title holders' rights or cause major disturbance.

The NNTT examined the affidavit of Gavin Egan, a Wajarri native title holder, which described the cultural significance of certain areas within the proposed exploration sites. The Tribunal also considered the submissions from Marlee Base Metals and the State, which argued that the exploration activities would not interfere with the native title holders' rights as they were of a low-impact nature and conducted at a significant distance from the culturally significant sites mentioned. The NNTT found that while the areas described in Mr Egan's affidavit had cultural significance, they were not distinguished as being of special or more than ordinary significance in accordance with the Wajarri traditions. Consequently, the Tribunal concluded that there was insufficient evidence to establish that the grant of the licenses would interfere with any sites of particular significance.

The NNTT also found that the Wajarri had not provided sufficient detail regarding how the grant of the licenses would interfere with their community or social activities. As the activities described in Mr Egan's affidavit did not occur within the areas of the proposed exploration licenses, and no real risk of interference was demonstrated, the Tribunal determined that the grant of the licenses was unlikely to interfere with the native title holders' rights. Therefore, the NNTT concluded that the grant of exploration licenses E09/2363 and E70/5289 to Marlee Base Metals were acts attracting the expedited procedure under the Native Title Act 1993 (Cth).

Orders