Catchwords: Native Title – Future Act – Acts attracting expedited procedure – construction and interpretation of s 237 – words 'is not likely to’ require a predictive assessment of likely consequences of future act – ‘interfere directly with the carrying on of the community or social activities’ refers to direct interference with physical ability to enjoy native title rights – ‘major disturbance’ to be accorded its ordinary English meaning – whether remedial action is relevant to concept of ‘major disturbance’ – whether evidence of grantee’s intention is relevant to predictive assessment – observations on meaning of ‘areas or sites of particular significance’ – observation on meaning and effect of second limb of s 237(c) – standard of proof of ‘likelihood’ – whether ‘balance of probabilities’ or ‘real chance’

Legislation: Native Title Act 1993 (Cth)
Mining Act 1978 W.A.

Cases:Re Irruntyju-Papalankutja Community v State of WA/Broad Meadow
NNTT WO95/7 Hon P. Seaman QC 6 October 1995
Dann v State of Western Australia (1997) 144 ALR 1
Ward v State of Western Australia (1996) 136 ALR 557
Cheinmora v Striker Resources and Dann v State of Western Australia (1996) 142 ALR 21
State of Western Australia v Ward (2000) 170 ALR 159
Re Warden Calder; Ex-parte Cable Sands (WA) P/L (1998) 20 WAR 343
Re Warden French; Ex-parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315
State of Western Australia v Bropho (unreported Federal Court 18 November 1996)
Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27 ALR 367
Transport Ministry v Simmonds (1973) 1 NZLR 359
Jungarrayi and Ors v Olney and Anor (1992) 105 ALR 527

BACKGROUND:

On 10^th November 1999, in response to a notice under s 29 of the Native Title Act 1993 (‘the Act’) given on or about the 9^th July 1999 that the State proposed to grant Exploration Licence 70/2106 to the Grantee, which notice included a statement that the State considered the grant to be an act attracting the expedited procedure, Derrick Smith, a registered Native Title Claimant on behalf of Gnaala Karla Boodja People (WC98/58), lodged an objection against the inclusion in such notice of that statement. The grounds of objection are:

‘The proposed act is likely to involve, as a minimum, sampling and drilling on the land and waters concerned, and is also likely to result in other types of major…

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 Western Australia v Smith

Details

AGLC: Western Australia v Smith [2000] NNTTA 239
Case: [2000] NNTTA 239
Decision Date: 23 June 2000

CaseChat Overview and Summary

The case of Western Australia v Smith involved an objection by Derrick Smith and the Gnaala Karla Boodja People against the inclusion of an exploration licence in the expedited procedure under the Native Title Act 1993. The objection was based on concerns that the proposed exploration activities would interfere with their community and social activities, disturb areas of particular significance, or cause major disturbances. The National Native Title Tribunal, led by Deputy President Hon E M Franklyn QC, had to determine whether the proposed exploration activities would likely interfere with native title rights. The tribunal analysed the statutory language, judicial interpretations, and legislative intent to interpret the term 'is not likely' in the amended s 237 of the Native Title Act. It held that the tribunal must undertake a predictive assessment to determine the likelihood of interference or disturbance, applying a standard of proof that considers a real or not remote chance, rather than strictly adhering to the balance of probabilities. The tribunal found that the proposed exploration activities were not likely to interfere with the Gnaala Karla Boodja People's hunting and camping activities, disturb areas of particular significance, or involve major disturbances, given the extensive area of their activities, the nature of the proposed activities, and the regulatory regime. Consequently, the tribunal determined that the grant of the exploration licence attracted the expedited procedure.

Orders