FEDERAL COURT OF AUSTRALIA
Little v Oriole Resources Pty Ltd [2005] FCA 506
NATIVE TITLE – appeal from National Native Title Tribunal - expedited procedure – future act – proposed grant of miscellaneous licence – objection application to Tribunal relying on lack of likelihood of major disturbance – whether second limb of s 237(c) of the Native Title Act 1993 (Cth) requires predictive assessment only of rights created without further reference to evidence – whether Tribunal erred in application of first limb of s 237(c) in not concluding right to create a mining camp necessarily involved a major disturbance – whether Tribunal erred in reference which it made to the history of mining and exploration in the general area of the future act – whether Tribunal erred in weight it placed on evidence of concerns of Aboriginal people
Native Title Act 1993 (Cth) s 29, 31, 32, 32(4), 169, 237, 237(c)
Native Title Amendment Act 1998 (Cth) (No.97 of 1998)Mining Act 1978 (WA) s 91(3)(b)
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 considered
Dann v Western Australia (1997) 74 FCR 391 applied
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 cited
Little v State of Western Australia [2001] FCA 1706 applied
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Minister for Immigration & Multicultural Affairs, Re; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 cited
R v Ministry of Defence; Ex parte Smith [1996] QB 517 cited
R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532 cited
R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 cited
Silver v Northern Territory of Australia (2002) 169 FLR 1 cited
Smith on behalf of Gnaala Karla Booja People v State of Western Australia (2001) 108 FCR 442 applied
Western Australia v Smith (2000) 163 FLR 32 applied
Young v Western Australia (2001) 164 FLR 1 citedALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE v ORIOLE RESOURCES PTY LTD and STATE OF WESTERN AUSTRALIA AND OTHERS
WAD 122 of 2004NICHOLSON J
29 APRIL 2005
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 122 OF 2004
BETWEEN:
ALBERT LITTLE AND OTHERS
ON BEHALF OF THE BADIMIA PEOPLE
APPLICANTSAND:
ORIOLE RESOURCES PTY LTD
FIRST RESPONDENTSTATE OF WESTERN AUSTRALIA AND OTHERS
SECOND RESPONDENTJUDGE:
NICHOLSON J
DATE OF ORDER:
29 APRIL 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 122 OF 2004
BETWEEN:
ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE
APPLICANTSAND:
ORIOLE RESOURCES PTY LTD
FIRST RESPONDENTSTATE OF WESTERN AUSTRALIA AND OTHERS
SECOND RESPONDENT
JUDGE:
NICHOLSON J
DATE:
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- Case
- [2005] FCA 506
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The appeal be dismissed.
2. There be no order as to costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J
Turning to the interests of the Australian community, the Tribunal concluded as follows:‘[27] On the available evidence I am satisfied that the Australian community as a whole, in the absence of any evidence of the concerns (if any) and views of the Aboriginal people in the locality, would consider the grant of the Licence and the exercise of the rights created thereby to be no more than another aspect of the conduct of the Mining and Exploration Industry in an area, presently and over many years the subject of considerable mining and exploration activity and that whilst the exercise of such rights will result in or involve disturbance to the land, in all of the circumstances it is not likely to involve “major” disturbance or to create rights whose exercise is likely to involve major disturbance in the ordinary meaning of that expression.’FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION: INTERPRETATION OF s 237(c) The first ground of appeal raises the issue of the interpretation of s 237(c) of the NT Act. It contends that the Tribunal erred in law because it failed to take into account a relevant consideration, namely, that it found that the grant of the Licence would create rights whose exercise was likely to involve major disturbance to the land or waters concerned. The applicants contend that the second limb of s 237(c) is to be understood as attaching the predictive element to the creation of rights but not to the exercise of them. It is submitted that the paragraph requires reference only to rights that, if exercised, are likely to involve major disturbance. The applicants do not dispute that there is an element of predictive assessment associated with the second limb but argue that such assessment is required to be applied only to the issue of the creation of rights rather than their exercise. It is submitted that such being the case and because the Licence would create rights to building a mining camp, the exercise of such rights must necessarily have been found by the Tribunal to be likely to involve major disturbance. In making this submission, the applicants accept that the Tribunal should have considered the rights created in the context of any applicable regulations or conditions minimising issues of disturbance to the land or waters concerned: Western Australia v Smith (2000) 163 FLR 32 at 47, at [26]. Nevertheless, it is submitted that the right to build a mining camp, even when subject to such regulations or conditions, is likely to cause a major disturbance so that the Tribunal was bound to make a finding to that effect. Furthermore, the applicants submit that there is no authoritative determination of the manner in which the second limb of s 237(c) should operate and that to the extent that the authorities comment on the limb, they are not decisive of that issue. The authorities will be referred to below. The approach which the Tribunal should have taken to the question of rights is said by the applicants to still be governed by similar principles to those set out by the Full Court of the Federal Court in Dann so far as the reference to the nature of the rights granted is concerned.