June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon - [2005] NNTTA 83

NATIONAL NATIVE TITLE TRIBUNAL

June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon, [2005] NNTTA 83 (15 November 2005)

Application Nos: WO05/327 and WO05/329

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

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IN THE MATTER of an inquiry into future act determination applications

June Harrington-Smith and Raymond Ashwin on behalf of the Wutha People (WC99/10) (native title party)

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The State of Western Australia (Government party)

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Trevor John Dixon (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date:  15 November 2005

Catchwords: Native title – future act – proposed grant of prospecting licences –expedited procedure objection applications – contentions but no evidence provided by native title party – direct interference with carrying on of community or social activities unlikely – interference with sites of particular significance unlikely – major disturbance to land unlikely – acts attract the expedited procedure.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 237
Mining Act 1978 (WA) s 57(4)

Cases:June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon, NNTT WO05/323 & WO05/325, [2005] NNTTA 82 (15 November 2005)
Representative of the
native title party: Mr Trevor Preston, Australian Interaction Consultants
Representative of the
Government party: Mr Clyde Lannan, Department of Industry & Resources

REASONS FOR DETERMINATION

Background

On 9 February 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P37/6616 and P37/6617 (‘the proposed licences’) to Trevor John Dixon (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grants attracted the expedited procedure.
On 9 June 2005, June Harrington-Smith (formerly June Ashwin) and Raymond Ashwin on behalf of the Wutha People (WC99/10, registered 15 June 1999) (‘the native title party’) made expedited procedure objection applications to the Tribunal – WO05/327 in relation to P37/6616 and WO05/329 in relation to P37/6617.
The area, location and extent to which the proposed licences are overlapped by the native title party are as follows:

P37/6616 – comprising an area of 107.41 hectares, 5 kilometres northerly of Leonora in the Shire of Leonora, 100% overlap;
P37/6617 – comprising an area of 153.37 hectares, 7 kilometres northerly of Leonora in the Shire of Leonora, 100% overlap;

In addition, the Wongatha registered native title claimant group (WC99/1, registered 10 February 2000) entirely overlaps the proposed licences and has the status of a native title party. On 9 June 2005, the Wongatha native title party also lodged two expedited procedure objection applications (WO05/326 and WO05/328). These objections were withdrawn following an agreement between the native title party and the grantee party on 2 August 2005.

Conduct of the inquiry

The conduct of the inquiry followed the same course as June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor…

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: June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon [2005] NNTTA 83
Case: [2005] NNTTA 83
Decision Date: 15 November 2005

CaseChat Overview and Summary

In this case, the parties involved were June Harrington-Smith and another individual on behalf of the Wutha People against the State of Western Australia and Trevor John Dixon. The dispute centred on the proposed grant of prospecting licences, which prompted objections under the expedited procedure for future act determinations in native title claims. The Federal Court was tasked with determining whether the proposed acts would interfere with the native title party's ability to carry out their community or social activities, affect sites of particular significance, or cause major disturbance to the land.

The central legal issue before the court was whether the proposed acts, which were subject to objection under the expedited procedure, would result in significant interference with the native title party's activities or disturb sites of particular significance. The court was required to assess the likelihood of such interference and disturbance based on the contentions raised and the evidence provided by the native title party. The court needed to decide whether the acts in question attracted the expedited procedure, which allowed for a quicker resolution of future act determinations in native title claims.

The court's reasoning focused on the contentions raised by the native title party and the absence of evidence to substantiate those contentions. The native title party argued that the proposed acts would interfere with their ability to carry out community or social activities, affect sites of particular significance, and cause major disturbance to the land. However, the court found that there was no evidence provided to support these contentions. Consequently, the court concluded that the proposed acts were unlikely to interfere with the native title party's activities, affect sites of particular significance, or cause major disturbance to the land. Based on this, the court determined that the acts in question did indeed attract the expedited procedure.

The final orders of the court were that the objections raised by the native title party were dismissed, and the proposed acts were found to attract the expedited procedure for future act determinations in native title claims. This decision allowed the proposed grant of prospecting licences to proceed without further delay, as the court found no significant interference or disturbance to the native title party's rights and interests.

Orders