Crowe v Western Australia

Case [2008] NNTTA 71


NATIONAL NATIVE TITLE TRIBUNAL

Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan, [2008] NNTTA 71 (6 June 2008)

Applications No:      WO07/806 and WO07/813

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Ronald Crowe, Sydney Dale, Laurence Gooyou, Gwen Gooyou, Mary Franklin, Ruby McIntosh and Sharon Crowe on behalf of Gnulli   (native title party)

-and-

Charlie Lapthorne, Warren Stanley Ryan, Maureen Dodd, Alice Moncrieff, Ben Roberts, Peter Windie, Stewart Peck, Wayne Lapthorne and Bella Randall on behalf of the Thudgari People          (native title party)

- and -

The State of Western Australia   (government party) 

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Zhukov Pervan   (grantee party)

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

Tribunal:                  John Sosso

Place:    Brisbane
Date:     6 June 2008

Hearing Dates:                  31 March 2008, 23 April 2008.

Representatives:                

Native title parties:            Mr Greg Young, Yamatji Land and Sea Council

Ms Toby Jones, Yamatji Land and Sea Council

Government party:           Mr Clyde Lannan, Department of Industry and Resources

Mr Trevor Creewel, State Solicitor’s Office

Grantee party:                   Ms Melissa Greer, Hetherington Exploration and Mining Title
  Services Pty Ltd

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – gender restricted evidence - legal principles – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – expedited procedure does not apply.

Legislation:        Native Title Act 1993 (Cth), ss 29, 77, 82, 109, 146, 151(2), 154, 155, 178, 179, 237

Aboriginal Heritage Act 1972 (WA), s 18, 62

Mining Act 1978 (WA), ss 20(5), 63

Sentencing Legislation Amendment and Repeal Act 2003 (WA) s 35

Cases:Champion/Western Australia/Maincoast Pty Ltd, WO04/389, [2005] NNTTA 35 (30 May 2005) Deputy President Sumner

Champion v Western Australia (2005) 190 FLR 362

Cheedy/Western Australia/Cazaly Iron Pty Ltd, WO06/529, [2008] NNTTA 39 (4 April 2008) Deputy President Sumner

Cheinmora v Striker Resources NL & Ors (1996) 142 ALR 21

Freddie v Western Australia (2007) 213 FLR 247

Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory, DO01/100, [2002] NNTTA 131 (5 July 2002) Member Sosso

Hicks/Western Australia/Legend Mining NL, WO99/71, [2000] NNTTA 324 (25 September 2000) Deputy President Franklyn

Jango v Northern Territory [2003] FCA 1230

Kanak v National Native Title Tribunal (1995) 61 FCR 103

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576

Little v Western Australia [2001] FCA 1706

Lockyer & Ors/Western Australia/Mineralogy Pty Ltd, WO03/925, [2006] NNTTA 133 (5 October 2006) Deputy President Sosso

Parker v Western Australia [2008] FCAFC 23

Re Irruntyju-Papulankutja Community (1995) 1 AILR 222

Repatriation Commission v Reid (1984) 54 ALR 157

Re Sheepskin and Opal Export Development Grants Board (1984) 6 ALD 594

Sampi v Western Australia (No. 2) [2001] FCA 620

Silver v Northern Territory (2002) 169 FLR 1

Smith v Western Australia (2001) 108 FCR 442

Velickovic/Western Australia/Rocky Reef Mining Pty…

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AGLC
Crowe v Western Australia [2008] NNTTA 71
Case
[2008] NNTTA 71
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Crowe v Western Australia involved a dispute concerning native title and the proposed grant of an exploration licence for mineral exploration. The native title parties objected to the grant, arguing that it would interfere with their rights under native title. The dispute was heard under the expedited procedure of the Native Title Act 1993 (Cth), which requires the court to determine whether the act in question is likely to interfere directly with the carrying on of community or social activities or with sites of particular significance to the native title parties.

The legal issues before the court were whether the proposed exploration activities would interfere directly with the native title parties' community or social activities and whether they would interfere with sites of particular significance. The court was also required to consider the applicability of the expedited procedure and whether gender-restricted evidence could be taken into account. The court needed to balance the rights of the native title parties with the potential benefits of the exploration activities.

The court found that the proposed exploration activities would interfere with the native title parties' rights. It held that the expedited procedure did not apply because the exploration activities were not likely to be carried out within a short timeframe. The court also considered the gender-restricted evidence presented by the native title parties and found it relevant to the determination. The court concluded that the proposed exploration activities would interfere with the native title parties' community or social activities and with sites of particular significance.

The final orders of the court were that the proposed grant of the exploration licence should not proceed without the consent of the native title parties or further orders of the court. The court also directed the parties to attempt to reach an agreement on the terms of the exploration activities, taking into account the native title parties' rights.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered, in the context of Western Australia, the applicable legal principles governing expedited procedure objection inquiries (at 439-449). I adopt those findings for the purpose of this inquiry while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on exploration licences have been strengthened. Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than 6 months after excavation unless otherwise approved by the Environmental Officer of the Department of Industry and Resources. Standard Condition 4 now has to be read with Paragraph 63(aa) of the Mining Act 1978 (WA) which now deems that an exploration licence will be granted subject to the tenement holder not using:“… ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless –(i)the holder has lodged in the prescribed manner a programme of work in respect of that use; and(ii)the program of work has been approved in writing by the Minister or the prescribed official.” The statements of contentions lodged on behalf of both native title parties contain a legal submission which has previously been rejected by the Tribunal. It is submitted that the steps required to assess the legislative criteria contained in section 237 are set out in an early Tribunal determination –Dann/Western Australia/GPA Distributors Pty Ltd [1997] NNTTA 20. It was also contended that the 1998 amendments to the Act have not diminished the validity of the principles set out in that determination. This contention was considered and rejected in Cheedy/Western Australia/Cazaly Iron Pty Ltd [2008] NNTTA 39 at [24]. I adopt the reasons of the Tribunal in that matter for the purpose of this determination. The native title parties also contended that the grantee party had indicated to their legal representative via email that he had reached agreement with a third party in respect of the proposed tenement, and that it appears that the grantee party will be transferring his interest to a third party. The native title parties then contended:“12. As the grantee party has not submitted any indication of the intentions of this third party to the NNTT or the Native Title Party, the NNTT’s predictive assessment should be made on the basis that the rights given under the Mining Act will be exercised in the full: Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR at 50-51 [34]–[35].” The Tribunal was not provided a copy of the email, but the grantee party did not challenge this assertion and, accordingly, I have proceeded on the basis that it accurately states the position. The Tribunal has determined that, in the context of a predictive risk assessment, evidence of the intention of a grantee party can be taken into account. In Silver v Northern Territory (2002) 169 FLR 1 at 16/[30] the Tribunal said:“The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement. In short, a grantee is under no obligation to adduce evidence as to its intentions with respect to a tenement, but if the grantee does adduce evidence the Tribunal can consider the material it has before it. It would not be sensible to indicate what weight would be given to the material presented, as in all cases it will depend on a range of issues which will vary with each expedited procedure objection. Nevertheless…evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.”