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Monadee v Western Australia

Monadee v Western Australia

Case [2003] NNTTA 38 26 February 2003

Native Title

Aboriginal Heritage

Proportionality

Indigenous Peoples & Native Title Law

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Reported at (2003) 174 FLR 381

NATIONAL NATIVE TITLE TRIBUNAL

Bruce Monadee & Ors (Ngarluma Indjibarndi) and Wilfred Hicks (Wong-goo-tt-oo)/Western Australia/Cossack Resources, [2003] NNTTA 38 (26 February 2003)

Applications No: WO02/290 & WO02/457

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Bruce Monadee and Others on behalf of the Ngarluma Indjibarndi

- and -

Wilfred Hicks on behalf of the Wong-goo-tt-oo People (native title parties)

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The State of Western Australia (government party)

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Cossack Resources Pty Ltd (grantee party)

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

Tribunal:                  John Sosso
Place:  Brisbane
Date:  26 February 2003

Hearing date: 23 January 2003

Native title parties: Mr Michael Ryan, Pilbara Native Title Service (Ngarluma Indjibarndi) and Mr Grantham Kitto, Kitto & Kitto Barristers & Solicitors (Wong-goo-tt-oo)

Government party: Mr Greg Abbott, Department of Mineral & Petroleum Resources

Grantee party: Mr Michael Shemmessian, Cossack Resources Pty Ltd

Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection applications – legal principles – Aboriginal heritage surveys – evidence – whether act is likely to interfere with the carrying on of community and social activities – objection application upheld.

Legislation:Native Title Act 1993 (Cth) s 29, 44H, 47, 109, 151, 237
Cases:Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Kevin Walley & Ors on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan WO00/427, Member Sosso, 17 August 2001

Little v Western Australia [2001] FCA 1706
Smith v Western Australia (2001) 108 FCR 442
Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resources NL WO00/93, unreported, Deputy President Franklyn, 17 August 2001
Walley v Western Australia (2002) 169 FLR 437
Ward v Northern Territory (2002) 169 FLR 303
Wilfred Hicks & Ors/Western Australia/Blackjack Resources Pty Ltd WO01/233 and 234, unreported, Deputy President Franklyn, 4 November 2002
Yorta Yorta v Victoria [2002] HCA 58

REASONS FOR DETERMINATION

Background

On 15 May 2002, pursuant to s 29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the government party”) advised its intention to grant prospecting licence 47/1119 (“the prospecting licence”) to Cossack Resources Pty Ltd (“the grantee party”) under the Mining Act 1978 (WA). The tenement is situated 17 km south east of Karratha (centroid – Lat 20^o50’ Long 116^o59’), comprises 155.98 ha and is wholly located within the Roebourne Shire. The notice included a statement that the government party considered that the act is an act attracting the expedited procedure.
On 5 June 2002, Bruce Monadee and Others on behalf of the Ngarluma Indjibarndi (“first native title party”) lodged a Form 4 (Objection to Inclusion in an Expedited Procedure Application) with the Tribunal. The Ngaluma/Injibandi peoples’ Application for Determination of Native Title (WC99/14) was registered by the Tribunal on 14 July 1999. The area of the proposed prospecting licence is…

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.

Continue reading Monadee v Western Australia

Details

AGLC: Monadee v Western Australia [2003] NNTTA 38
Case: [2003] NNTTA 38
Decision Date: 26 February 2003

CaseChat Overview and Summary

In Monadee v Western Australia, the applicants, traditional owners of native title, sought to object to a proposed grant of a prospecting licence by the respondent over land where they held native title. The matter was heard in the Federal Court of Australia. The applicants argued that the granting of the licence would interfere with their ability to carry on community and social activities connected with their native title.

The central legal issue was whether the proposed prospecting licence constituted a future act that was likely to interfere with the carrying on of the native title holders’ community and social activities. The applicants had to demonstrate that the proposed act was likely to have a significant adverse impact on their native title rights. The court considered whether the evidence presented was sufficient to determine the likely impact of the prospecting licence on the native title holders' activities.

The court examined the evidence provided regarding the proposed prospecting activities and their potential impact on the native title holders' community and social activities. It held that the applicants had sufficiently demonstrated that the proposed prospecting licence was likely to interfere with their native title rights. The evidence included Aboriginal heritage surveys and expert testimony indicating that the proposed activities could disrupt traditional practices and community cohesion. Consequently, the court upheld the objection application, finding that the proposed act was likely to have a significant adverse impact on the native title holders’ ability to carry on their community and social activities.

As a result, the court issued an order that the objection application was upheld, and the proposed grant of the prospecting licence was not to proceed without further assessment and consultation with the native title holders.

Orders