Reported at (2007) 213 FLR 247
NATIONAL NATIVE TITLE TRIBUNAL
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd, [2007] NNTTA 37 (14 May 2007)
Application No: WO06/338
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
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24) (native title party)
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The State of Western Australia (Government party)
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Globe Uranium Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 14 May 2007
Catchwords: Native title – future act – proposed grant of exploration licence – exploration for uranium – expedited procedure objection application – whether act is likely to interfere directly 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 cause major disturbance to land or waters – whether the fact that the exploration is for uranium affects consideration of s 237 – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 24MB(1), 24 MD(6A), 26(1)(c), 29, 151(2), 237
Aboriginal Heritage Act 1972 (WA), ss 5, 16, 17, 18, 62
Mining Act 1978 (WA), ss 8, 20(5), 57A(1), 57(2aa), 63, 66
Mining Regulations 1981 (WA), 21A
Mines Safety and Inspection Act 1994 (WA) s 4
Mines Safety and Inspection Regulations 1995 (WA), Part 16 – 16.7, 16.8, 16.9, 16.12, 16.16, 16.18, 16.19, 16.33
Cases:Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), Hon C J Sumner
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Little v Western Australia [2001] FCA 1706; [2001] AILR 50; 6(4) p 67
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243
Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd, NNTT WO06/103 and WO06/197, [2007] NNTTA 29 (29 March 2007), Hon C J Sumner
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner
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- AGLC
- Freddie v Western Australia [2007] NNTTA 37
- Case
- [2007] NNTTA 37
- Decision Date
CaseChat Overview and Summary
In considering the objections, the Court examined the provisions of the Mining Act and the regulations made under it. The Court noted that the Mining Act had been amended since the decision in Walley v State of Western Australia, introducing new conditions for exploration licences and altering the process for obtaining approval for the use of ground disturbing equipment. The Court also considered the evidence presented by Freddie regarding the potential impact of the exploration on the native title holders' rights and interests. The Court found that the proposed exploration would not interfere with the carrying on of community or social activities, interfere with sites of particular significance, or cause major disturbance to the land or waters. The Court also found that the fact that the exploration was for uranium did not affect the consideration of section 237 of the Mining Act.
The Court dismissed the objection to the grant of the exploration licence. The Court found that the proposed exploration would not interfere with the native title holders' rights and interests and that the Mining Act provided sufficient safeguards to protect the land and environment. The Court also noted that the exploration would be subject to strict conditions, including the requirement to obtain approval for the use of ground disturbing equipment and to carry out backfilling and rehabilitation of the land within six months of excavation.
In summary, the Court dismissed the objection to the grant of the exploration licence for uranium on pastoral lease 3114/1049. The Court found that the proposed exploration would not interfere with the native title holders' rights and interests and that the Mining Act provided sufficient safeguards to protect the land and environment. The Court also noted that the exploration would be subject to strict conditions, including the requirement to obtain approval for the use of ground disturbing equipment and to carry out backfilling and rehabilitation of the land within six months of excavation.
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
Since the determination in Walley the Mining Act has been amended. I note that the maximum size of an exploration licence may be increased beyond 70 blocks to not more than 200 blocks in areas designated by the Minister (ss 57A(1), 57(2aa)). More significantly for present purposes s 63 has been amended by the addition of a new sub-section 63(aa). That section relevantly now reads:‘63.Condition attached to exploration licenceEvery exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and —…(aa) will not use 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 programme of work has been approved in writing by the Minister or a prescribed official;(b) will fill in or otherwise make safe to the satisfaction of a prescribed official all holes, pits, trenches and other disturbances to the surface of the land the subject of the exploration licence which are —(i)made while exploring for minerals; and(ii)in the opinion of the prescribed official, likely to endanger the safety of any person or animal; and(c) will take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.’ Section 8 of the Mining Act defines ‘ground disturbing equipment’ as:(a) mechanical drilling equipment;(b) a backhoe, bulldozer, grader or scraper; or(c)any other machinery of a kind prescribed for the purposes of this definition;’ The office of the Environmental Officer in the Environment Division of the Department of Industry and Resources (‘DoIR’) is the prescribed official for the purposes of s 63 of the Mining Act (Regulation 21A, Mining Regulation 1981). Standard Condition (4) referred to in Walley (and which is imposed on the grant of all exploration licences) has been modified slightly and now reads:‘4.Unless the written approval of the Environmental Officer, DoIR is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of consteans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.’ Standard Condition (2) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, DoIR. Government party documentation establishes the underlying land tenure of proposed licence E69/2119 to be entirely pastoral lease 3114/1049, held by K A Shaw and D M Martin. There are no Aboriginal communities within the vicinity of the proposed licence.