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Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd

Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd

Case [2019] NNTTA 27 24 May 2019

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NATIONAL NATIVE TITLE TRIBUNAL

Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd and Another [2019] NNTTA 27 (24 May 2019)

Application No:

WO2018/0063

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

- and -

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

Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC (WCD2002/001)

(native title party)

- and -

Squadron Resources Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

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

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	24 May 2019
Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure does not apply – the act is not an act attracting the expedited procedure
Legislation:	Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Mining Act 1978 (WA) ss 61, 66 Rights in Water and Irrigation Act 1914 (WA) ss 2, 25
Cases:	Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi) Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another[2018] NNTTA 41 (Gooniyandi v Inventum Resources) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (Rosas v Northern Territory) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (Silver v Northern Territory) Ward v State of Western Australia (1996) 69 FCR 208 (Ward v Western Australia) Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (Wilma v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representatives of the native title party:	Samuel Legge, Kimberley Land Council Andrew Topfer, Kimberley Land Council

Representative of the grantee party:

Yvette Collins, Hetherington Exploration & Mining Title Services Pty Ltd

Representatives of the Government party:

Bethany Conway, Department of Mines, Industry Regulation and Safety

Francis Cardell-Oliver, State Solicitor's Office

REASONS FOR DETERMINATION

The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E45/4943 to Squadron Resources Pty Ltd (Squadron). The licence is approximately 637 square kilometres in size and is located 206 kilometres north of Telfer, on the edge of the Great Sandy Desert. The Karajarri Traditional Lands Aboriginal Corporation RNTBC hold exclusive native title in trust for the Karajarri People over 45 percent of the…

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: Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Squadron Resources Pty Ltd [2019] NNTTA 27
Case: [2019] NNTTA 27
Decision Date: 24 May 2019

CaseChat Overview and Summary

The Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC challenged the State of Western Australia's decision to grant exploration licence E45/4943 to Squadron Resources Pty Ltd. The Karajarri people hold exclusive native title over 45 percent of the licence area. The State's notice of the grant included a statement that the grant was an act attracting the expedited procedure under the Native Title Act 1993 (Cth). The Karajarri objected to this statement, prompting the Tribunal to determine whether the expedited procedure applied.

The central legal issue was whether the grant of the licence was likely to interfere directly with the Karajarri people's community or social activities, interfere with areas or sites of particular significance, or involve major disturbance to the land or waters concerned. The Tribunal had to assess these criteria against the evidence presented by the Karajarri people and the proposed activities of Squadron Resources.

The Tribunal found that the grant of the licence was not an act attracting the expedited procedure. While the Karajarri people presented evidence of community activities and identified two springs of particular cultural significance, they did not provide specific details about the frequency, duration, or locations of their activities, making it difficult to conclude that Squadron's exploration activities would directly interfere with these activities. Regarding the springs, the Tribunal was satisfied that the springs were of particular significance according to the Karajarri people's traditions and that Squadron's activities would likely lead to substantial interference with these sites. However, the Tribunal did not find sufficient evidence to conclude that the grant would likely involve major disturbance to the land or waters concerned.

The Tribunal's determination was based on the lack of detailed evidence regarding the potential interference with the Karajarri people's community and social activities, and the likelihood of substantial interference with culturally significant sites. The Tribunal did not find that the grant was likely to involve major disturbance to the land or waters.

The Tribunal determined that the grant of exploration licence E45/4943 to Squadron Resources Pty Ltd is not an act attracting the expedited procedure.

Orders