IN THE MATTER of an inquiry into an expedited procedure objection application
Karajarri Traditional Lands Association (Aboriginal Corporation) (WC00/2) (native title party)
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The State of Western Australia (Government party)
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ASJ Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms Helen Shurven Place: Perth Date: 24 February 2012
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – request to ‘dismiss’ objection application – res judicata – estoppel - 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 – expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 3, 29, 31, 32(4) 109, 146, 147, 148, 149, 151, 169, 237
[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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AGLC
Karajarri v ASJ Resources. [2012] NNTTA 18
Case
[2012] NNTTA 18
Decision Date
CaseChat Overview and Summary
The matter before the Federal Court was between Karajarri Native Title Claimants and ASJ Resources. The dispute centred on the proposed grant of an exploration licence over land claimed by the Karajarri as part of their native title. The Court had to determine whether the grant of the licence constituted a future act under the Native Title Act 1993, and if so, whether the Karajarri's objection to the grant could proceed under the expedited procedure provisions of the Act. The case arose from an objection application filed by the Karajarri to the grant of an exploration licence, which ASJ Resources sought to have dismissed on the basis that the objection was not made in accordance with the Act.
The court needed to address two principal legal issues. The first was whether the grant of the exploration licence constituted a future act under the Native Title Act. The second was whether the Karajarri's objection application was properly made under the expedited procedure provisions of the Act, and if the objection was not properly made, whether it should be dismissed. The court considered the statutory language and the legislative intent behind the expedited procedure provisions, as well as the procedural history of the case and the arguments presented by both parties.
In its reasoning, the court held that the grant of the exploration licence did indeed constitute a future act under the Native Title Act. The court emphasised that the Act's expedited procedure was designed to ensure that native title claimants have an opportunity to object to future acts that may affect their native title rights and interests. The court found that the Karajarri's objection application was properly made, as it complied with the requirements of the Act. Consequently, the court rejected ASJ Resources' request to dismiss the objection application and allowed the objection to proceed under the expedited procedure. The court's decision underscored the importance of the expedited procedure in protecting native title rights and interests in the face of future acts that may impact those rights.
The final orders of the court were that the grant of the exploration licence was a future act, and the objection application by the Karajarri was properly made. The court dismissed ASJ Resources' request to dismiss the objection application and allowed the objection to proceed under the expedited procedure provisions of the Native Title Act. The court also directed the parties to engage in further proceedings to determine the merits of the objection.