Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Mark Denis Hargreaves - [2022] NNTTA 70

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Mark Denis Hargreaves & Another [2022] NNTTA 70 (22 November 2022)

Application No:

WO2021/1085

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

- and -

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

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2004/001)

(native title party)

- and -

Mark Denis Hargreaves

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:

Mr Glen Kelly

Place:

Perth

Date:

22 November 2022

Catchwords:

Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – lack of specificity of activities in the proposed licence area - whether act likely to interfere with sites or areas of particular significance – failure to show particular significance of sites – failure to identify actual existence of burial sites - the act is an act attracting the expedited procedure

Legislation:

Mining Act 1978 (WA) s 48

Native Title Act 1993 (Cth) ss 29, 32, 151, 237

Aboriginal Heritage Act 1972 (WA)

Cases:

Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (Andy Campbell & Ors)

Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia)

HL & Others (Warrwa #2) v 142 East Pty Ltd [2014] NNTTA 49 (HL & Others)

Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory)

Neowarra v State of Western Australia [2004] FCA 1092 (Neowarra v Western Australia)

Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)

Representative of the native title party:

Carolyn Ryland, Kimberley Land Council Aboriginal Corporation

Representative of the grantee party:

Mark Hargreaves

Representatives of the Government party:

Bethany Conway, Department of Mines, Industry Regulation and Safety
Richard Anthonisz, State Solicitors Office

REASONS FOR DETERMINATION

Background

On 19 March 2021, the State of Western Australia (State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant prospecting licence P04/305 (proposed licence) to Mr Mark Denis Hargreaves (grantee party). The notice for the proposed licence included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).
The proposed licence is approximately 0.4 square kilometres in size, is situated approximately 128 kilometres north…

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.

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Details

AGLC: Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Mark Denis Hargreaves [2022] NNTTA 70
Case: [2022] NNTTA 70
Decision Date: 22 November 2022

CaseChat Overview and Summary

The case of Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Mark Denis Hargreaves involved a dispute over the grant of a prospecting licence by the State of Western Australia to Mark Denis Hargreaves. The native title holders, Wanjina-Wunggurr, objected to the State's assertion that the grant of the licence was an act attracting the expedited procedure under the Native Title Act 1993 (Cth). The primary legal issues before the Tribunal were whether the grant of the licence was likely to interfere directly with the carrying on of community or social activities, interfere with sites or areas of particular significance, or involve major disturbance to any part of the licence area. The Tribunal needed to determine whether the grant of the prospecting licence P04/305 was an act attracting the expedited procedure.

The Tribunal's reasoning focused on the three criteria outlined in s 237 of the NTA. Firstly, regarding potential interference with community or social activities, the Tribunal found that the proposed prospecting activities, although located within the native title area, were not specific to the licence area and would likely occur over a broader area. The small size of the proposed licence area and the grantee's willingness to engage with the native title holders supported the view that there was no risk of direct interference with community and social activities. Secondly, concerning areas or sites of particular significance, the Tribunal found that the evidence provided by Wanjina-Wunggurr did not sufficiently identify or explain the particular significance of the proposed sites, and thus could not find these sites to be of particular significance. Finally, regarding major disturbance, Wanjina-Wunggurr did not provide evidence or contentions on this point, and the Tribunal found that major disturbance was unlikely.

Based on this reasoning, the Tribunal determined that the grant of P04/305 to Mark Denis Hargreaves was an act that attracts the expedited procedure under the NTA. Consequently, the proposed grant of the prospecting licence would proceed with the expedited procedure in place.

Orders