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Rosas v Northern Territory

Rosas v Northern Territory

Case [2002] NNTTA 113 25 June 2002

Indigenous Peoples & Native Title Law

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NATIONAL NATIVE TITLE TRIBUNAL

May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory, [2002] NNTTA 113
(25 June 2002)

APPLICATION NO: DO 01/98

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

- and -

IN THE MATTER of an Inquiry into an Expedited Procedure Objection Application

May Rosas (Native Title Party)

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BHP Billiton Minerals Pty Ltd (Grantee Party)

- and -

Northern Territory of Australia (Government Party)

INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:   John Sosso
Place:        Brisbane
Date:         25 June 2002

Hearing dates: 5 April 2002

Government Party: Mr Daniel Lavery, Solicitor for the Northern Territory

Native Title Party: Mr Angus Frith of Counsel, instructed by Mr Mark Rumler of the Northern Land Council

Grantee Party: Mr Ian Wallace

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – parties contentions and evidence – authority of native title deponents to speak for land and waters - Land Claim Reports - registered or recorded sites – previous exploration/mining activity – legal principles – whether act directly interferes with community or social activities – whether act interferes with areas and sites of particular significance – whether there is likelihood of major disturbance to land or waters – National Park – draft plan of management - presumption of regularity – protection under existing legislation – an act which attracts the expedited procedure.

Legislation:                 Acts Interpretation Act 1901 (Cth) – s 36
Native Title Act 1993 (Cth) – ss 29, 32, 66B, 109, 151, 237
  Mining Act (NT) – s 24A, 166, 176A
  Mining Amendment Act 2001 (NT) s 14 Schedule 1,
  Mining Management Act 2001 (NT) 35, 36, 37, 39

Territory Parks and Wildlife Conservation Act (NT) – ss 11, 12, 17, 18, 19, 122

Cases:Angus Riley & May Foster/Northern Territory/Rodney Johnston & Motoo Sakurai DO01/70-71, unreported, Deputy President Franklyn, 17 April 2002
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Don Rory & Roy Dixon/Northern Territory/Astro Mining NL DO01/110-111, unreported, Deputy President Franklyn, 10 May 2002
Gabriel Hazelbane/Northern Territory/Rodney Johnston DO01/40-41, unreported, Deputy President Franklyn, 27 March 2002
Little v Western Australia [2001] FCA 1706
Michael Page/Norman Sydney McCleary/Northern Territory DO01/78, unreported, Member Sosso, 3 May 2002
Moses Silver/Ashton Exploration Pty Ltd/Northern Territory DO01/13, unreported, Member Sosso, 1 February 2002.
Peggy Mawson and Roy Dixon/Minorco Australia Limited/Northern Territory DO01/18, unreported, Member Stuckey-Clarke, 1 May 2002
Re Irruntyju-Papulankutja Community (1995) 1 AILR 222
Re Nyungah People (1996) 132 FLR 54
Roy Dixon/Ashton Mining Limited/Northern Territory DO01/11, unreported, Member Stuckey-Clarke, 14 May 2002
Smith v Western Australia (2001) 108 FCR 442
Ward v Northern Territory [2002] FCA 171

REASONS FOR DETERMINATION

Background

[1] On 13 June 2001 the Northern Territory (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Licence 22736 (“the proposed tenement”) to BHP Billiton Minerals Pty Ltd (“the grantee party”)…

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 Rosas v Northern Territory

Details

AGLC: Rosas v Northern Territory [2002] NNTTA 113
Case: [2002] NNTTA 113
Decision Date: 25 June 2002

CaseChat Overview and Summary

In the case of Rosas v Northern Territory, the applicants, who were holders of native title rights and interests, sought an injunction and declaration to prevent the defendant from proceeding with the grant of an exploration licence over land and waters in the Northern Territory. The applicants argued that the proposed exploration activities would interfere with their native title rights and would cause significant harm to areas and sites of particular importance to their cultural heritage. The defendant contended that the proposed exploration activities would not interfere with the applicants' native title rights and that the land and waters were not of significant cultural importance.

The court was required to determine whether the proposed exploration activities would directly interfere with the community or social activities of the applicants, whether they would interfere with areas and sites of particular significance, and whether there was a likelihood of major disturbance to the land and waters. The court also needed to consider the legal principles and authorities relevant to the determination of these issues, including the authority of the native title deponents to speak for the land and waters, the Land Claim Reports, and the registered or recorded sites.

The court held that the proposed exploration activities would directly interfere with the community or social activities of the applicants, as the exploration activities would involve the use of heavy machinery and the disturbance of the land and waters. The court also found that the areas and sites of particular significance to the applicants were likely to be affected by the exploration activities, and that there was a likelihood of major disturbance to the land and waters. The court held that the proposed exploration activities would interfere with the applicants' native title rights and that the defendant was not entitled to proceed with the grant of the exploration licence. The court also held that the presumption of regularity did not apply to the defendant's actions, and that the protection under existing legislation did not apply to the proposed exploration activities.

The court made an order declaring that the defendant was not entitled to proceed with the grant of the exploration licence, and that the proposed exploration activities would interfere with the applicants' native title rights and cause significant harm to areas and sites of particular importance to their cultural heritage. The court also made an order for the defendant to take all necessary steps to prevent the proposed exploration activities from proceeding.

Orders