Legal Research
Cases
Tullock v Western Australia

Tullock v Western Australia

Case [2011] NNTTA 22 24 February 2011

Type to search within this case.

NATIONAL NATIVE TITLE TRIBUNAL

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22 (24 February 2011)

Application No: WO10/171

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants (WC07/3) (native title party)

- and -

The State of Western Australia (Government party)

- and -

Bushwin Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  24 February 2011

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – community or social activities of ‘looking after country’ – discussions, meetings with grantee party, attempting to negotiate agreement – physical activities – activities not take place on area of exploration licence – whether activities arise from claimed or registered native title rights and interests – future act not likely to interfere directly with the carrying on of community or social activities – expedited procedure attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA), s 63, 66
Aboriginal Heritage Act 1972 (WA), s 18

Cases: Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84

Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Drury v Western Australia [2002] NNTTA 171; (2002) 170 FLR 182
Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150
Leonne Velickovic on behalf of the Widji People/Westex Resources Pty Ltd/Western Australia, NNTT WO03/386, [2004] NNTTA 13 (4 March 2004), Daniel OʹDea
Ned Cheedy and Others on behalf of Yindjibarndi #1/Western Australia/Cazaly Iron Pty Ltd, NNTT WO06/529, [2008] NNTTA 39 (4 April 2008), Hon C J Sumner
Neowarra v State of Western Australia [2003] FCA 1402
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431
Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1
Smith v Western Australia & Anor [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Northern Territory [2002] NNTTA 104; (2002) 169 FLR 303,
Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208; (1996) 136 ALR 557
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; (2002) 191 ALR 1

Solicitor for the

native title party: Mr Malcolm O’Dell, Central Desert Native Title Services

Representative of the

native…

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 Tullock v Western Australia

Details

AGLC: Tullock v Western Australia [2011] NNTTA 22
Case: [2011] NNTTA 22
Decision Date: 24 February 2011

CaseChat Overview and Summary

The case of Tullock v Western Australia involves the applicant, Tullock, who is seeking to object to the grant of an exploration licence by the respondent, Western Australia. The dispute centres around the potential impact of the proposed exploration licence on Tullock's native title rights and interests. The matter was heard in the Federal Court of Australia.

The central legal issue the court needed to determine was whether the proposed grant of the exploration licence would likely interfere directly with the carrying on of community or social activities arising from Tullock's claimed or registered native title rights and interests. Specifically, the court considered whether the proposed activities associated with the exploration licence would directly impact the traditional practices of ‘looking after country’ by Tullock. This included examining the physical activities that were planned to take place, and whether these activities would occur on the area covered by the exploration licence.

In reaching its decision, the court held that the proposed exploration activities were not likely to interfere directly with the carrying on of community or social activities arising from Tullock's native title rights and interests. The court noted that while Tullock had engaged in discussions and meetings with the grantee party in an attempt to negotiate an agreement, the physical activities associated with the exploration licence were not planned to occur on the area covered by Tullock's native title claims. Consequently, the court found that the expedited procedure for objecting to the grant of the exploration licence was applicable. The court therefore allowed the objection to proceed under the expedited procedure.

The final orders of the court were that the objection to the grant of the exploration licence by Tullock would proceed under the expedited procedure, recognising that the proposed activities were unlikely to interfere directly with Tullock's community or social activities related to native title.

Orders