Western Desert Lands Aboriginal Corporation v State of Western Australia and Others - [2008] NNTTA 22

NATIONAL NATIVE TITLE TRIBUNAL

Western Desert Lands Aboriginal Corporation/Western Australia/Kitchener Resources; Scimitar Resources, [2008] NNTTA 22 (11 February 2008)

Application Nos: WO06/273; WO06/280

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Western Desert Lands Aboriginal Corporation (native title party)

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The State of Western Australia (Government party)

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Kitchener Resources Pty Ltd (grantee party in WO06/273)

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Scimitar Resources Ltd (grantee party in WO06/280)

DISMISSAL OF APPLICATIONS
REASONS FOR OPINION ON PRELIMINARY POINT

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 11 February 2008

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – jurisdiction – allegations that Government and grantee parties have not complied with Mining Act 1978 (WA) and Racial Discrimination Act 1975 (Cth) – whether Tribunal has power to dismiss objection applications – whether Tribunal has power to make a summary finding that the expedited procedure is not attracted – relationship between Native Title Act 1993 (Cth) and Racial Discrimination Act 1975 (Cth) – whether native title party is an ‘owner’ or ‘occupier’ under Mining Act 1978 (WA) – statement that the acts attract the expedited procedure withdrawn by Government party – objection applications dismissed pursuant to s 148(a) of the Native Title Act.

Legislation:Native Title Act 1993 (Cth) ss 7, 8, 24AA-44G, 24MD(3)(b), 24MD(4)(b), 25-44, 26MD(6A) 29, 30, 31, 32, 33, 35, 36(2), 38, 39, 51(3), 75, 148(a), 149A, 155, 156(5), 225, 233, 237, 240, 253
Mining Act 1978 (WA) ss 33, 35, 37, 38, 123, 125A
Racial Discrimination Act 1975 (Cth) s 10

Cases:Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Gulliver v Western Desert Lands Aboriginal Corporation & Ors [2005] NNTTA 88; (2005) 196 FLR 52
Holt v Manzie [2001] FCA 627; (2001) 114 FCR 282
Iluka Resources Limited v Martin & Anor [2004] WAMW10
James on behalf of the Martu People v Western Australia [2002] FCA 1208
Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland [2001] FCA 414; (2001) 108 FCR 453
The Griffin Coal Mining Co Pty Ltd v Nyungar People [2005] NNTTA 100; (2005) 196 FLR 319
WMC Resources & Anor v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Western Australia v The Commonwealth (1975) 183 CLR 373
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124

Hearing dates: 27-28 November 2007

Counsel for the

native title party: Mr George Irving

Solicitors for the Mr Malcolm O’Dell and Mr Giovanni Fardin

native title party Central Desert Native Title Services

Representative of the Mr Chris Clegg

grantee party (WO07/273): Statewide Tenement and Advisory Services

Representative of the

grantee party (WO07/280): Mr Shannon McMahon, McMahon Mining Titles Pty Ltd

Counsel for the

Government party: Mr Trevor Creewel, State Solicitor’s Office

Representative of the

Government party: Mr Phil Mirabella, Department of Industry and Resources

REASONS FOR DETERMINATION

Background

On the 1 March 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘NTA’) of its intention to grant the following exploration licences (‘the proposed licences’) to Kitchener Resources Pty Ltd (‘Kitchener’) and Scimitar Resources Ltd (‘Scimitar’) (‘the grantee parties’). Included in the notice is a statement that it considered the grant attracted the expedited procedure (that is, the act is one which can be done without the normal negotiations required by s 31 of the NTA):

Kitchener

E45/2521, comprising an area of 224.02 square kilometres located 107 kilometres north-westerly of Telfer in the Shire of East Pilbara, 58.78 per cent overlap with the Martu and Ngurrara native title determination area;
E45/2522, comprising an area of 224.01 square kilometres located 101 kilometres northerly of Telfer in the Shire of East Pilbara, 53.42 per cent overlap with the Martu and Ngurrara native title determination area;
E45/2523, comprising an area of 223.4 square kilometres located 60 kilometres northerly of Telfer in the Shire of East Pilbara;
E45/2524, comprising an area of 223.16 square kilometres located 38 kilometres northerly of Telfer in the Shire of East Pilbara;
E45/2525, comprising an area of 223.02 square kilometres located 36 kilometres north-westerly of Telfer in the Shire of East Pilbara;
E45/2526, comprising an area of 222.69 square kilometres located 17 kilometres westerly of Telfer in the Shire of East Pilbara, 93.78 per cent overlap with the Martu and Ngurrara native title determination area;
E45/2527, comprising an area of 222.98 square kilometres located 32 kilometres north-easterly of Telfer in the Shire of East Pilbara;
E45/2528, comprising an area of 222.81 square kilometres located 22 kilometres north-easterly of Telfer in the Shire of East Pilbara; and
E45/2529, comprising an area of 222.6 square kilometres located 16 kilometres easterly of Telfer in the Shire of East Pilbara, 99.57 per cent overlap with the Martu and Ngurrara native title determination area.

Scimitar

E45/2689, comprising an area of 79.21 square kilometres located 62 kilometres southerly of Telfer in the Shire of East Pilbara, 52.34 per cent overlap with the Martu and Ngurrara native title determination area and 47.66 per cent overlapped by the Martu native title claim (WC96/78).

With the exception of the proposed licences that specify as a percentage an area of land overlapped by the Martu native title determination the proposed licences are 100 per cent overlapped by it. The Federal Court determination that native title exists was made by consent on 27 September 2002 (James on behalf of the Martu People v Western Australia [2002] FCA 1208). The nature and extent of those native title rights and interests are:
‘(1) The nature and extent of the native title rights and interests held by the common law holders in the determination area are:
(a)the right to possess, occupy, use and enjoy the land and waters of the determination area to the exclusion of all others, including:
(i)the right to live on the determination area;
(ii)the right to make decisions about the use and enjoyment of the determination area;
(iii)the right to hunt and gather, and to take the waters for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;
(iv)the right to control access to, and activities conducted by others on, the land and waters of the determination area;
(v)the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs; and
(vi)the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the determination area;
(b) the right to use the following traditionally accessed resources:
(i)ochre;
(ii)soils;
(iii)rocks and stones; and
(iv)flora and fauna
for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and
(c)the right to take, use and enjoy the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, including the right to hunt on and gather and fish from the flowing and subterranean waters.
(2)The native title rights and interests are exercisable in accordance with the traditional laws and customs of the common law holders. ’
On 17 July 2003 the Federal Court further determined that the Western Desert Lands Aboriginal Corporation (Jamukurna-Yapalikunu) (‘WDLAC’) was to act as the registered native title body corporate for the determination area. The native title party in respect of these proceedings is, therefore, the WDLAC as trustee for the common law holders.
On 28 June 2006 an objection to the expedited procedure statement was lodged with the Tribunal by WDLAC in respect of the Kitchener licences (designated WO06/273). On 29 June 2006 a further objection to the expedited procedure statement was lodged by WDLAC in respect of the Scimitar licence (WO06/280 for the Scimitar licence).
In accordance with standard practice in expedited procedure matters, upon lodgement of the objection applications the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allowed a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. At the preliminary conferences convened in respect of both objections on 1 August 2006 the parties advised that a new land access and heritage agreement dealing with lands over which native title had been determined to exist was being negotiated between the Government and Ngaanyatjarra Council Aboriginal Corporation (‘NCAC’), then the recognised native title representative body for the region including the Martu determination area and representative of WDLAC. Should these negotiations result in a settled agreement, this would then be offered to the grantee parties for consideration as a means of resolving the objection applications. On 14 August 2006 the directions were vacated at the request of the parties as it appeared that the ongoing negotiations would not be completed within the timeframes initially contemplated.
At a status conference convened by the Tribunal on 25 October 2006 the Government party advised that, as far as it was concerned, the parties had reached an impasse and negotiations had been terminated. On this basis, it requested that the objection applications now be resolved by means of inquiry and that directions be reinstated accordingly. NCAC did not agree that negotiations had ceased and requested that the matter be heard urgently by the appointed member to deal with the issue of directions and the form any subsequent inquiry might take.

At a hearing on 27 October 2006 it became apparent to me that an agreed outcome in these matters was unlikely and I reinstated directions. It has been clear to the Tribunal since October 2006 that the parties viewed these matters as a means of testing the issues surrounding the applicability of the expedited procedure to lands over which there was a determination of exclusive native title rights and interests. It was for this reason that the Tribunal’s usual form of directions in expedited procedure matters was varied on a number of occasions to permit a more extensive exchange of contentions and submissions between the parties and particularly to deal with the native title party’s contentions arising from their view of the significance of the native title party being holders of exclusive native title rights and interests.
A request was made by the native title party for a hearing on country but subsequently withdrawn and the matter proceeded on the basis of documentary evidence including affidavits and a hearing in Perth. Leave was granted for the native title party to cross-examine Government and grantee party witnesses (s 156(5) NTA).
Pursuant to s 155 of the NTA directions were made to protect the confidentiality of some of the documentary evidence (The Martu Native Title Claim Connection Report dated May 2001 and Appendices) as follows (17 May 2007):
These documents are to be viewed only by Members and officers of the Tribunal engaged in the Inquiry, representatives of the Government party and representatives of the grantee party, and are to be viewed only in relation to expedited procedure objection applications WO06/273 and WO06/280.
The Government party is permitted to use the documents listed above in relation to other matters concerning the Martu Determination area.
No copies are to be made.
The copies provided to the grantee parties are to be forwarded to the Tribunal at the conclusion of the proceedings, along with a written undertaking that no copies have been made, for delivery to the native title party.”
Gender restriction directions pursuant to s 155 were made in relation to an affidavit (and drafts) of Professor Robert Tonkinson as follows (26 September 2007):
“(a) shall be kept confidential by the Tribunal, the grantee parties and the State and not disclosed by them to any other person, except in accordance with Order 1(c) or as required by law;
(b) shall not be disclosed to any female staff of the Tribunal, the grantee parties or the State; and

2. The affidavit of Professor Robert Tonkinson, and any draft form of it, is to be provided to the Tribunal and other parties in a sealed envelope marked ‘confidential to be opened by the addressee only’ and addressed respectively to Deputy President Sumner (National Native Title Tribunal), Mr Griff Ranson (State Solicitor’s Office), Mr Chris Clegg and Mr Shannon McMahon, who will deal with the material in the first instance.”

The hearing was conducted on 27 and 28 November 2007 in Perth but not completed and adjourned to 13-15 February 2008. On 9 January 2008 the Government party advised that in the circumstances of the evidence which had been adduced it no longer considered that the expedited procedure applied to the proposed future acts and withdrew its statement that they attracted the expedited procedure (s 32(7) NTA). The Government party explained that its views were based on the particular circumstances of these matters and should not be seen as a precedent for any other matters under Subdivision P (Part 2, Division 3 of the NTA - the right to negotiate provisions) either currently or in the future. As there is now no assertion that the expedited procedure is attracted the Tribunal has no jurisdiction to conduct an inquiry and the objection applications are dismissed pursuant to s 148(a) of the NTA.
The Tribunal observes that on the basis of the evidence produced, particularly in relation to ss 237(a) and 237(b) of the NTA, the decision of the Government party (made, it is assumed, after consultation with the grantee parties) was understandable. This observation is made despite the Tribunal being of the opinion that much of the evidence adduced in cross-examination about the history of the application of Regional Standard Heritage Agreements (‘RSHAs’) developed between the Government party, various native title representative bodies in WA and industry turned out to be of limited relevance to the inquiry (see Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [15]-[31] for a summary of the RSHA process in WA). The native title party argued that there was no RSHA for the NCAC region but only a template heritage agreement which could be taken up by specific claim groups but was not taken up by the Martu. The evidence clearly established that a RSHA (or template agreement) had not been accepted by all claim groups within the NCAC region and certainly did not apply to the Martu either at the claim stage or after determination. This much I understood to have been accepted by the Government party.
Section 237 of the NTA provides:
“237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”

Preliminary issue

The native title party raised a preliminary issue in relation to these proceedings which was dealt with in their written contentions and those of the Government party (which were adopted by the grantee parties). Although the hearing was not concluded I am satisfied that the exchange of written contentions provided on the preliminary point were completed and would have enabled a decision to be made on the papers. Although there is now no requirement to make a formal decision, I consider in the circumstances some observations on the preliminary point are appropriate and may be of benefit to the parties.
The native title party contends that in a number of respects the fact that the proposed future act is to be done over land in relation to which a determination of exclusive native title rights and interests has been made means that the expedited procedure should not be attracted. Most fundamental is the contention raised as a preliminary issue that the Government and grantee parties are not according to the native title party the rights to which it is entitled under the Mining Act 1978 (WA) or are not according those rights in a way which is consistent with the Racial Discrimination Act 1975 (Cth) (‘RDA’). The native title party contends that as native title holders they are entitled to the same rights under the Mining Act as would be accorded to the holders of freehold title. I understand the native title party’s argument to be that if the Tribunal is satisfied that under the Mining Act the Government or grantee parties do not treat holders of exclusive native title rights and interests in the same way as holders of freehold title either because of the express terms of the Mining Act or by operation of s 10 of the RDA, then there are sufficient grounds, without more, for finding that the expedited procedure is not attracted or to dismiss the application for want of jurisdiction (presumably pursuant to s 148(a)). The contentions of the parties on this issue are set out below.
The ‘Statement of Contentions of the Native Title Party’ dated 14 May 2007 (NTPSoC) on this preliminary issue is as follows:
‘2.     Preliminary Issues
a.It is customary to commence an Objection Inquiry with an overview of s 237 of the NTA, since that section forms the basis of the Tribunal’s Inquiry function in respect of objections to the expedited procedure. However this is not an ordinary case. Ordinarily, the legal foundation of an objection is the procedural right, granted to native title claimants if their native title claim passes the registration test required by s 190A (6) of the NTA. In this case the legal foundation of the objection is the substantive right of the native title holders, to possess, occupy, use and enjoy the land and waters of the Determination Area, to the exclusion of all others.
b.A determination of native title under s 225 of the NTA is a judgement in rem; that is to say, it is a “public act which affects the status of the land itself” (see: The Wik Peoples v The State of Queensland and Others (1994) 49 FCR 1 at 8). That is why the Registrar of the NNTT is obliged, under s 199 of the NTA, to advise the State land title office of an approved determination, as soon as practicable after it is made.
c.In this case, the Government Party and the Grantee Party have proceeded towards the grant of the proposed tenements, under the Mining Act 1978 WA (“the Mining Act”), on the assumption that the right enjoyed by owners and occupiers of land, under that Act, do not apply in cases where such ownership or occupation rests, not upon the titles alienated from the Crown, but upon the legal recognition given to traditional rights by an approved determination of native title. If this assumption were correct, native title owners and occupiers would enjoy only the same limited procedural right enjoyed by native title claimants under the expedited procedure provisions of the NTA; i.e., the right to object, on the three grounds set out in s 237, to the loss of their rights to negotiate. This is stark contrast to the rights afforded to non-native title owners and occupiers, under the Mining Act.
d.In respect of “private” land, alienated after 1 January 1899, an owner and an occupier has a right, firstly, to be notified, under s 33(1) of the Mining Act, by the person who applied for the exploration tenements. Thereafter, owners and occupiers have, under s 33(2) of the Mining Act:
2.4.1.the right to object to the grant of the proposed tenements;
2.4.2.the right to be heard on such objection;
2.4.3.the right, if the Mining Warden considers it proper to do so, to have the costs of the objection paid by the proponent.
e.Pursuant to s 123(3) of the Mining Act, owners and occupiers also have the following rights:
2.5.1.the right to negotiate an agreement with the proponent about compensation, which takes into account the matters set out in s 123 (4) (a) — (h) of the Mining Act; namely:
(a)    being deprived of the possession or use, or any particular use, of the natural surface of the land or any part of the land;
(b)    damage to the natural surface of the land or any part of the land;
(c)     severance of the land or any part of the land from other land of, or used by, that person;
(d       any loss or restriction of a right of way or other easement or right;
(e)     the loss of or damage to, improvements;
(f)      social disruption; and,
…
(h)    any reasonable expense properly arising from the need to reduce or control the damage resulting or arising from the mining; and
2.5.2.the right, in default of such agreement, to have the matter of compensation determined by the Mining Warden.
f.In addition, owners and occupiers have a further right, under s 35(1) of the Mining Act; namely, to receive any compensation, whether agreed or determined, prior to the exercise of any rights under the exploration licences.
g.As indicated the Government Party and the Grantee Party in this case appear to have assumed that the NTP, as a native title owner and occupier, was not entitled to any of these rights; because no notice was given to WDLAC by the Grantee Party, as required by s 33 (1) of the Mining Act.
h.However, s 10 (1) of the Racial Discrimination Act 1975 (Cth) (“RDA”) effectively extends to the holders of an approved determination of native title the same procedural rights enjoyed under the Mining Act by owners and occupiers of private land..
i.Section 10(1) of the RDA provides:
If by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
j.The High Court has held that “the NTA is not to be taken as repealing the RDA to any extent” (Western Australia v Ward [2002] HCA 28, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [99]).
k.The High Court pointed out (ibid. at [105]) that s 10(1) of the RDA is directed towards:
...the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race, colour or national or ethnic origin. “Enjoyment” of rights directs attention to much more than what might be thought to be the purpose of the law in question. Given the terms of the Convention which the RDA implements (the International Convention on the Elimination of all Forms of Racial Discrimination) that is not surprising. The Convention’s definition of racial discrimination refers to any distinction, exclusion, restriction or preference based (among other things) on race which has the purpose or effect of nullifying or impairing (again among other things) the enjoyment of certain rights.
l.In circumstances such as the present, where the Mining Act merely “omits to make universal” the enjoyment of rights conferred on owners and occupiers of private land, s 10 (1) of the RDA confers complimentary rights on the native title holders (ibid. at [128]).
m.The relief afforded by the RDA operates not only in respect of laws that discriminate against Aboriginal people in their entirety but also in respect of laws that discriminate “against particular Aboriginal peoples” (Williams v Tandanya Cultural Centre (2001) 163 FLR 203; per Driver FM at [21]).
n.A similar result also follows from ss 24MD (6A) of the NTA. This section extends to native title holders the same procedural rights under the Mining Act as they would have if they instead held ordinary title to the subject land (Iluka Resources at [42]). The term “ordinary title” means a freehold estate in fee simple (NTA s 253). A “procedural right”, in respect of an act affecting native title, is defined in s 253 of the NTA as (a) a right to be notified of the act or (b) a right to object to the act or (c) any other right that is available as part of the procedures that are to be followed when it is proposed to do the act. [Note: This contention was withdrawn by the native title party. The Tribunal regards this as appropriate – see below.]
o.The first relevant procedure to be followed in respect of an application for an exploration licence is the one in s 33 (1) of the Mining Act. As indicated above, under this provision, the Grantee Party was obliged to give notice of its application, for the proposed tenements, to the owners and occupiers of the land. The Grantee Party chose not to give notice of its application to the NTP and thus breached s33 (1) of the Mining Act.
p.Had the Grantee Party chosen to comply with s 33 (1) of the Mining Act, it would have been open to the NTP to object to the grant of the Exploration Licences, pursuant to s 33 (2) of that Act, on grounds that are far broader than those provided for in s 237 of the NTA. As was observed in Iluka Resources Limited v Martin & Anor [2004] WAMW 10 (“Iluka Resources”), per Calder SM at [48]), while there must always be a proper legal foundation for an objection that may justify a refusal to grant, “the Mining Act does not attempt to proscribe or to otherwise characterise the basis upon which objections may be made”. His Honour held (at [35]):
Objectors whose objections are based on “native title grounds” should not be refused a hearing by the Warden for no reason other than that there are other means under the NTA whereby their objections may be dealt with or whereby there may be resolution of disputes and other issues by negotiation or agreement.
q.His Honour further observed (at [53]):
Where a person who lodges an objection under the Mining Act to the grant of a mining tenement is also a native title holder or a registered native title claimant under the NTA, while it is necessary to be aware of and to recognise that such persons have rights under the NTA and under the Racial Discrimination Act and that the legal basis of their objections under the Mining Act to the grant of a mining tenement may arise from the rights which they derive under those Commonwealth Acts, in my opinion great care has to be exercised before deciding that such objections should be characterised as having features that require or justify that insofar as the provisions of the Mining Act have application to those objections, they should be approached or treated in a way that is different to the approach or treatment given to objectors and objections which do not derive from rights and obligations created by the NTA or the Racial Discrimination Act.
r.Given that the rights and interests, recognised in the Native Title Determination, existed before the assertion of British sovereignty, in 1829, it would have been open to the NTP to object to the grant of the proposed tenements on the grounds that the Determination Area, by virtue of s. 10 of the RDA, attracts the same protection, under the Mining Act, as that afforded to a fee simple estate alienated before 1 January 1899. If the proposed tenements affected an interest of that kind, the Grantee Party could not have applied directly for an Exploration Licence. Pursuant to s 37(1) of the Mining Act, the Grantee Party would have only a limited right to apply to have the land brought within the operation of those provisions of the Mining Act that apply to land alienated after that date.
s.In such a case, if a geological survey of the land finds that there is a reasonable likelihood that the land contains any mineral in payable quantities, the Minister may declare, by written notice, that the land will come within the relevant provisions of the Mining Act at the end of a period, of no less than six months, from the date of the notice (s 37(3) (a)). But then, the owner of the land gets a right of priority, to apply for a mining tenement during the notification period (s 38(1)); and, it is only if the owner does not do so, or if he does but his application is refused, that the Minister may grant a mining tenement under s 38 (2) (b) to the original s 37(1) applicant. However, in that case, 90% of all rent and royalties received by the Crown for any minerals won from the land must, under s 38 (2) (a) of the Mining Act, be paid to the owner of the land.
t.Again, had the Grantee Party complied with s 33 (1) of the Mining Act, it would have been open to the NTP, to exercise the negotiation and compensation rights set out in ss 123 (3), 123 (4), and s 35 of the Mining Act. In this regard, it is contended that ss 24MD (3) (b) (ii) of the NTA, which deals with compensation payable under Division 5 of the NTA, does not apply in this case because, although the grant of the Exploration Licences is a future act of the kind contemplated by that subsection (in the sense that it passes the similar compensable interest test, in s 240 of the NTA), s 125A of the Mining Act does in fact provide for compensation to be paid by the Grantee Party to the NTP.
u.Since the NTA is not intended to affect the operation of any State law that is capable of operating concurrently with the NTA (see: s 8 NTA), it follows that the NTP was entitled to be notified under s 33(1) of the Mining Act and to exercise the rights of an owner and occupier under that Act.
v.The Grantee Party chose not to comply with s 33 (1) of the Mining Act; and, in so doing, deprived the NTP of an opportunity to exercise the same rights as those enjoyed by all other owners and occupiers of private land under the Mining Act. The Grantee Party, with the support of the Government Party, has circumvented the RDA, and now looks to the procedures and powers of the Tribunal to complete the process.
w.However the effect of s 7(2) of the NTA is that the Tribunal, in the performance of its Inquiry functions, and in the exercise of its determinative powers, is bound by the provisions of the RDA. Accordingly, it is contended, the Tribunal should refuse to exercise its determinative powers in favour of the Grantee Party because to do otherwise would facilitate the Grantee Party’s circumvention of the RDA and deny to the NTP the same rights afforded to non-native title owners and occupiers of land under the Mining Act.
x.Conversely, the exercise of the Tribunal’s determinative powers in favour of the NTP would at least provide similar rights to negotiate with the Grantee Party, as those enjoyed by non-Indigenous land owners and occupiers under the Mining Act. Accordingly, it is contended, the Tribunal should determine that the expedited procedure does not apply.’

The Government party’s response was provided by way of the ‘Reply of the Government Party to the Native Title Party’s Statement of Contentions’ dated 17 July 2007:
‘11.The Government party agrees (SoC 1.9) that this is the first objection application within an area of determined native title. However the government party submits there is no doubt that the expedited procedure applies equally to areas covered by registered native title claims and areas covered by native title determinations. This point is conceded by the native title party (see Objector’s Documents no.9) which makes it clear that its objections relate not to whether or not the expedited procedure can apply, but rather because it is hoping to avoid having to deal separately with the issues of access to the tenement, compensation and environmental rehabilitation. Further, this point is made clear by the definition of native title party in ss.29 and 30 of the Native Title Act1993 (Cth) (“NTA”), which includes without distinction both a registered native title body corporate and a registered native title claimant.
12.Further, s.237 NTA makes it clear that areas of land or waters covered by a native title determination is included in the expedited procedure by its consistent reference in all its three paragraphs to “holders … of native title in relation to the land or waters concerned”.
13.Thus, contrary to the suggestion in SoC 2.1, there is no difference, insofar as the expedited procedure is concerned, between the way the NTA treats registered native title claimants and the way it treats native title holders.
Preliminary issues
14.Paragraphs 2.1 to 2.24 of the SoC are devoted to saying that the native title party was not given notice under s.33 of the Mining Act 1978 (WA) of the intended grant of the tenement in issue in this matter whereas, for reasons to do with the Racial Discrimination Act and, to a lesser extent, s.26MD(6A) of the NTA, it should have been given notice; and because it was not given notice it was unable to exercise valuable rights under the Mining Act.
15.Pursuant to s.32(1) and s.32(4) of the NTA, in deciding whether or not the expedited procedure applies, the Tribunal is confined to a consideration of those criteria set out in s.237 NTA. If the native title party has grievances relating to proceedings under the Mining Act it must seek redress in an appropriate forum.
16.The native title party’s requests in SoC 2.23 and 2.24 for the Tribunal to “refuse to exercise its determinative powers [presumably referring to the Tribunal’s powers to make a determination under s.32(4) NTA] in favour of the Grantee Party” are requests for the Tribunal to exercise its jurisdiction in an improper way and in a way which are ultra vires the Tribunal’s powers under s.32 NTA. The assertions made in SoC 2.1 to 2.24 are irrelevant to the present inquiry.
17.Therefore the Government party does not intend to respond to the contents of SoC 2.1 to 2.24, other than to say that a possible reason why the native title party was not given notice by the grantee party under s.33(1) of the Mining Act 1978 (WA) was that land which is the subject of a native title determination is not included within the definition of “private land” under the Mining Act.
General legislative framework for objection inquiry
18.Section 33(1) of the Mining Act contains neither the requirement that native title holders be given notice of matters pursuant to that section, nor does Division 3 of Part III of the Mining Act give native title holders any procedural rights in respect of private land. Thus the native title party’s assertions at SoC 3.5 that the grantee party has breached the law, and thus dispelled the presumption of regularity, is erroneous.’
The native title party elaborated on the preliminary issue in its ‘Response of the native title party to the Government party reply to the native title party’s contentions (Amended Submission)’ filed on 29 October 2007. The following points are made:
Notice under s 33 of the Mining Act should have been given to the native title party as owner or occupiers of land and that such compliance is a precondition to the commencement of right to negotiate procedures.
The failure of the grantee party to give the required notice to the native title party as a land owner or occupier is an attempt to circumvent the provisions of the RDA in respect of the Mining Act which acts concurrently with the NTA.
The Tribunal lacks jurisdiction to determine the objection for reasons specified in its original contentions but also including:
· the grantee party is using the NTA for an unlawful purpose, namely to circumvent the operation of the RDA in respect of the Mining Act;
· the Government party has exercised its discretion to trigger the expedited procedure to effect an unlawful purpose; and
· a determination by the Tribunal in these circumstances would bring it into disrepute and if made in favour of the Government and grantee parties be a breach of the RDA.
That the Government party’s exercise of discretion to give the s 29 notice in the circumstances constitutes an abuse of the Tribunal’s processes and the Tribunal should refuse to determine the matter.
The Government party is estopped from relying on the procedures under the NTA which permits the Government party to circumvent the concurrent operation of the Mining Act and RDA.
The Government party has failed to explain the legal basis for its assertion that a possible reason for the grantee party not giving notice under s 33 of the Mining Act was that the determined land is not included within the definition of private land under the Mining Act. The Government party’s response indicates that it has misunderstood the native title party’s central argument which is that the effect of the RDA is to confer complimentary rights on native title holders equivalent to those enjoyed by owners and occupiers of ‘private land’ under the Mining Act which means that the notice must be given.
There were also some arguments advanced by the native title party based on the Government party’s approach to negotiation of the proposed new land access and heritage agreement with WDLAC which it is not necessary to consider. The essence of their argument on the preliminary point is sufficiently described above.
The Government party provided a ‘Reply of the Government party to the Native Title Party’s amended submission in response’ on 5 November 2007 and made the following points.
Compliance by a grantee party with the provisions of the Mining Act is not a pre-condition to procedures under the NTA but independent of each other. While the Mining Act procedures may be completed prior to the giving of the s 29 notice this is not always the case and is not required by law.
Division 3 of Part 2 of the NTA (ss 24AA-44G) sets up an exhaustive regime for future acts to the extent that if a future act affects native title it will be valid if covered by certain provisions of Division 3, and invalid if not (s 24AA(2)).
Section 32 of the NTA as read with s 237 sets up an exhaustive regime for the expedited procedure.
Redress for complaints about procedures under the Mining Act should be sought in a forum of competent jurisdiction which the Tribunal is not.
While the RDA applies to the performance of functions and exercise of provisions by the Tribunal (s 7 NTA) the Tribunal has no role in administration of the Mining Act.
For these reasons there is no basis to the native title party’s argument that the Tribunal lacks jurisdiction, that there is an abuse of the Tribunal’s processes, or that the Government party must be estopped from relying on the procedures of the Tribunal.
The Government party has the unfettered option in every case to include or not include a statement in the s 29 notice that the act attracts the expedited procedure and such decision is not one to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies (Holt v Manzie [2001] FCA 627; (2001) 114 FCR 282 at 298 [25]).
The Tribunal accepts the Government party’s contention that it is not open to the Tribunal to make a determination based on the matters raised as preliminary issues. I am satisfied that it would be beyond the power of the Tribunal to deal with the objections in this way. The right to negotiate provisions of the NTA (Part 2, Division 3, Subdivision P, ss 25-44) apply to native title parties who are defined as registered native title claimants or registered native title bodies corporate. This is clear from the notice provisions in ss 29 and 30 and the definition of native title party in s 253. Subsection 29(2) says that notice of the future act must be given to any registered native title body corporate as well as a registered native title claimant (both of which are designated a ‘native title party’). Section 30 says that a registered native title claimant (s 30(1)) or a registered native title body corporate (s 30(2)) who obtains this status within specified times from the notification day is also a native title party. Section 253 defines ‘native title party’ by reference to paragraphs 29(2)(a) and (b) and s 30.
Subsection 30(3) defines ‘registered native title rights and interests’ of a native title party for the purpose of Subdivision P as those described on either the National Native Title Register (s 30(3)(a)) (determined native title rights and interests) or the Register of Native Title Claims (s 30(3)(b) (registered claims for native title). The Tribunal has held on the basis of s 30(3) in the context of a future act determination application that Parliament intended to place determined and claimed native title rights on the same footing for the purposes of the right to negotiate provisions and considering the effect of a future act on them pursuant to s 39(1)(a)(i) NTA (WMC Resources & Anor v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (at 340 [28]-[29]).
Based on the provisions of the NTA there is no basis for drawing a distinction between registered claimants and determined and registered native title holders (whether holders of exclusive native title rights and interests or not) in the manner in which the expedited procedure operates. The task of making a determination based on s 237 of the NTA is essentially the same in both cases and will depend on the evidence produced. It may be that a determined native title holder will as a matter of practice be in a better position to provide evidence relating to the s 237 factors because of the evidence which it has already produced to support the determination. However this is a practical issue related to the quality of evidence not something which suggests that at law the NTA requires native title holders to be treated differently from registered native title claimants in relation to the expedited procedure. The policy of drawing no distinction between registered claimants and registered determined holders of native title is also apparent from the terms of paragraphs s 237 (a) & (b) which refer to native title holders and require the paragraphs to be applied ‘disregarding any trust created under Division 6 of Part 2’. The Tribunal and Federal Court have proceeded on the basis that the term holders of native title in s 237 encompasses both registered native title claimants and persons who have been determined to be the common law native title holders (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 26; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 at 405).
Whether dealing with registered native title claimants or determined holders of native title the Tribunal’s task is a relatively narrow one of conducting an inquiry to determine whether the act is or is not an act attracting the expedited procedure by reference to the matters referred to in s 237 of the NTA. The consequences of the Tribunal’s determination are set out in s 32.
If the Government party, when giving notice of the proposed future act under s 29 of the NTA includes a statement that the act attracts the expedited procedure (s 32(1)) and a native title party objects to the inclusion of such a statement within four months of the notification day (ss 32(3), 75) the arbitral body (the Tribunal) must conduct an inquiry (s 139(b)) and determine whether or not the act is an act attracting the expedited procedure based on the matters referred to in s 237 (s 32(4)). If the Tribunal determines that the act is one that attracts the expedited procedure then the Government party may do the act (s 32(4)), if it determines that the expedited procedure is not attracted then the normal negotiations required by s 31(1) apply (s 32(5). In my view these provisions with provisions relating to dismissal (ss 147, 148, 149) or reinstatement (s 149A) of objections are the limit of the Tribunal’s powers in relation to the expedited procedure. The Tribunal cannot use the matters relied upon by the native title party to launch a collateral attack on the expedited procedure when the NTA clearly specifies what the Tribunal’s powers and responsibilities in relation to it are.
The Tribunal accepts the Government party’s submission that the Federal Court authority of Holt v Manzie referred to in para [19] above is consistent with this position. The decision of Carr J in Cheinmora (at 42) is to similar effect.
If the native title party is concerned that the Government or grantee parties, for the reasons set out in their contentions, are acting in a manner that does not accord with State or Federal legislation it will need to seek redress in the appropriate Court.
Because of the view I have taken of the Tribunal’s powers in relation to the expedited procedure I am not required to consider the detailed contentions of the native title party on the preliminary issue. However, the following observations can be made.
First, the native title party relies on s 7(2) of the NTA to say that because the Tribunal in the performance of its inquiry and determination functions is bound by the provisions of the RDA, this provides a basis for the Tribunal to find that the expedited procedure is not attracted because to do otherwise would condone the grantee party’s failure to comply with the RDA and deny the native title party the same rights afforded to non-native title owners and occupiers under the Mining Act (NTPSoC para 2.23). The native title party also relies on the fact that the NTA is not to be taken as repealing the RDA to any extent (NTPSoC para 2.11).
Section 7 of the NTA says:
‘Racial Discrimination Act
(1)   This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.
(2)Subsection (1) means only that:
(a)   the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and
(b)   to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.
(3)   Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.’
The current s 7 replaced that which existed prior to the 1998 amendments:
‘Racial Discrimination Act
Operation of RDA not affected
(1) Nothing in this Act affects the operation of the Racial Discrimination Act 1975.
Validation provisions not affected
(2) Subsection (1) does not affect the validation of past acts by or in accordance with this Act.’
It is the Tribunal’s view that s 7(2) has no application in relation to future acts that may be done by the Government party under its own law. Further, the native title party has misconstrued the effect of s 7 which is not relevant to the task before the Tribunal in relation to whether the expedited procedure is attracted or not under the provisions of s 237.
The effect of s 7(2) which was introduced by the 1998 amendments to the NTA and the relationship between the NTA and RDA is explained in the Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1998 as follows:
‘Racial Discrimination Act’
Government amendment (HI) – Schedule 1, item 3, page 5 (lines 4 and 5)
This amendment replaces section 7 of the NTA. The purpose of this amendment is to clarify any confusion about the interaction of the NTA and the Racial Discrimination Act 1975 (the RDA). The amendment is intended to replicate in legislation the High Court’s comments in Western Australia v The Commonwealth (1975) 183 CLR 373 about the interaction of the NTA and RDA.
New subsection 7(1) provides that the NTA is to be read and construed subject to the provisions of the RDA. Subsection 7(2) explains exhaustively what subsection 7(1) means. These subsections are together intended to do no more than reflect the position under subsection 7(1) of the current NTA, namely, that nothing in the NTA is intended to affect the operation of the RDA. Like its predecessor, new section 7 is not intended to nullify the specific rules prescribed by the NTA in relation to acts affecting native title (see Western Australia v The Commonwealth at 484). That is, the RDA cannot interfere with the validity of an act affecting native title, whether it is a past act, intermediate period act or future act, that is valid under the NTA.
In Western Australia v The Commonwealth the High Court explained the relationship between the NTA and the RDA thus:
‘The relationship of the Native Title Act with the Racial Discrimination Act has two aspects: first, the Native Title Act validates or permits the validation of past acts that were not of full force and effect because of the operation of the Racial Discrimination Act; second the Native Title Act affords protection to the holders of native title who heretofore have been protected by (and who may continue to be protected under (329) the Racial Discrimination Act, the regime established by the Native Title Act being more specific and more complex than the regime established by the Racial Discrimination Act.
The Racial Discrimination Act, the only relevant law of the Commonwealth prior to the commencement of the operation of the Native Title Act, did not alter the common law relating to native title, Section 10 of the Racial Discrimination Act added statutory protection to the common law rights of the holders of native title so that the holders of native title were able to enjoy their title equally with the enjoyment of other title by the holders thereof. Thus the Racial Discrimination Act protects native title holders against discriminatory extinction or impairment of native title. The Native Title Act, on the other hand, protects native title holders against any extinction or impairment of native title subject to the specific and detailed exceptions which that Act prescribes or permits.’[at 462 to 463]
The reference by the High Court to a possibility that native title holders may continue to be protected by the RDA is explained by footnote 329 which refers to subparagraph 233(1)(c)(ii) of the NTA and Para 6 of the High Court’s judgment. Part 6, of the judgment discusses the operation of subsection 7(1) of the current NTA; the High Court states at 483:
‘Section 7(1) at least ensures that the Native Title Act is not construed as impliedly repealing any of the provisions of the Racial Discrimination Act. The latter Act continues to operate on subjects outside the Native Title Act in precisely the same way as it operated before the Native Title Act came into operation.’ (emphasis added)
The continuing operation of the RDA to which their Honour were referring is what is being addressed in new subsection 7(2).” Subsection 7(2) makes it clear that the RDA will only operate on subjects outside the NTA and only be relevant in construing ambiguous terms in the NTA.
This means that the RDA will continue to operate in relation to the performance of function and the exercise of powers conferred by or authorised under the NTA. This does not prevent the performance of functions or the exercise of powers, but may affect how those functions are performed and how those powers are exercised. For example, in exercising his or her discretionary powers under the Act to employ staff and engage consultants, the Registrar must not act in a way that discriminates on the basis of race and contravenes the RDA.
But in exercising a Ministerial discretion the Commonwealth Minister can make a decision which the Act allows, even though this decision may affect native title rights, may affect them differently to the way it affects other rights, or even if it only affects native title rights. Where the Act allows such decisions, the RDA cannot have the effect of limiting those powers, or rendering such decisions invalid.
Further, future acts are not authorised by the NTA itself. The NTA imposes conditions on the doing of future acts, that if complied with, will be valid. However, the acts themselves are otherwise authorised (for example, by a State land management or mining law). Accordingly, paragraph 7(2)(a) does not mean that the RDA nullifies acts that comply with the NTA, and which the NTA says are valid. Again, if the NTA states that an act can be done, or enables such an act, then even though this may affect native title rights differently to the way it affects other rights, or even if it only affects native title rights, the RDA cannot restrict or invalidate such acts.
The provision also means that if construing an ambiguous term in the NTA in a way that is consistent with the RDA would remove the ambiguity then it should be so construed. To this extent, the RDA will assist in construing the NTA and determining its operation.
The purpose of new subsection 7(3) is to ensure that subsection 7(1) and 7(2) do not in any way affect the validation of past acts or intermediate period acts in accordance with the NTA. Like its predecessor (subsection 7(2) of the current Act), this provision is otiose and inserted out of an abundance of caution (Western Australia v The Commonwealth at 484).’

There are further comments from the High Court in Western Australia v The Commonwealth (1975) 183 CLR 373 which help explain the position (at 484):
‘And further, even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s.7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.
Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s.7(1) cannot be construed as intending to nullify those provisions. It may be that s.7(2) is otiose but that provision is properly to be seen as inserted out of an abundance of caution.’
The comments of the High Court in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [99] reaffirm this position:
“One effect of this section is that, contrary to what otherwise might follow from the fact that the NTA is a later Act of the Federal Parliament, the NTA is not to be taken as repealing the RDA to any extent. The significance of s 7(3) is to make it clear that, notwithstanding the continued paramountcy of the RDA stated in the earlier sub-sections, the effect of the validation achieved by the NTA is to displace the invalidity which otherwise flowed from the operation of the RDA. It is unnecessary to consider whether s 7 may have other operations.”
It is apparent from this analysis that even if s 7(2) could be regarded as relevant (which on the Tribunal’s approach it is not), the native title party has misconceived its effect.
The NTA provides a means whereby past acts that were invalid because of their affect on native title (had they been valid) and which were done contrary to the RDA are validated and also provides that certain future acts which affect native title are valid (Part 3, Division 2). Some future acts are valid even if the procedural rights in Part 3, Division 2 are not afforded to a native title party (for example a mooring permit covered by s 24HA – Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland [2001] FCA 414; (2001) 108 FCR 453). Future acts to which the right to negotiate applies are invalid to the extent they affect native title if the procedures in Subdivision P are not followed (s 25(4) NTA). Whether there are other procedures under Federal or State law which must also be followed to ensure that a grant is validly made is not a matter for the Tribunal. This issue will need to be dealt with by the relevant Court.
Second, the native title party contended that s 24MD(6A) of the NTA extends to native title holders the same procedural rights under the Mining Act as they would have if they instead held ordinary title to the land and cites the authority of the Warden’s Court (Iluka Resources Limited v Martin & Anor [2004] WAMW10, GN Calder SM (NTPSoC para 2.14). In my respectful view this is not correct and it was appropriate for the native title party to withdraw this contention. Section 24MD deals with future acts which pass the freehold test and are (subject to the right to negotiate where applicable) valid where the procedural rights specified therein are afforded to registered claimants or registered native title holders. While the grant of an exploration licence passes the freehold test in that it is a grant which can be made over ordinary (freehold title) s 24MD(6A) does not apply to it. This is made clear by s 24MD(6)(a) which specifically excludes acts covered by Subdivision P from the operation of s 24MD(6A).
Third, the native title party says that by virtue of s 10 of the RDA they should be treated as owners or occupiers of private land under the Mining Act (NTPSoC paras 2.3-2.9). As explained the Tribunal does not propose to deal with this argument or whether the correct procedures under the Mining Act were followed including whether the opportunity to negotiate payment of compensation prior to commencing certain exploration activities should have been given to the native title party (NTPSoC para 2.6). However, the Tribunal is of the view that leaving aside whether private land is involved the native title party is an ‘owner’ of land within the Mining Act and therefore entitled to compensation under s 123 of that Act.
The native title party also said that s 24MD(3) of the NTA which provides for compensation to be paid under Part 2, Division 5 of the NTA has no application to this case. They say that the reason for this is because s 125A of the Mining Act provides for compensation to be paid by the grantee party (NTPSoC para 2.20). While the Tribunal agrees that s 24MD(3) is not applicable, this is not because of the operation of s 125A but because the native title party in this case falls within the definition of ‘owner’ which provides the basis for compensation by direct operation of the Mining Act. In the Tribunal’s view s 125A merely transfers the liability for the payment of compensation from the Crown to the grantee party as provided for in s 24MD(4)(b) of the NTA and does not provide the substantive basis for payment (Gulliver at [40]; Griffin Coal at [38]).
Section 123 of the Mining Act creates an entitlement to compensation for the owner or occupier of ‘any’ land where mining takes place. This includes, for instance, the holders of pastoral leases who are excluded from the definition of private land and others who may also be excluded from the definition of private land but are nevertheless owners or occupiers of land. The entitlement to compensation extends to all loss and damage suffered or likely to be suffered by an owner or occupier resulting or arising from the mining (s 123(2)). The amount payable may be for the matters listed in s 123(4) (NTPSoC para 2.5.1).
The Tribunal has considered the entitlement of native title holders to compensation for the affect of mining on native title on a number of occasions (see analysis in Gulliver v Western Desert Lands Aboriginal Corporation & Ors [2005] NNTTA 88; (2005) 196 FLR 52 at [38]-[47] and The Griffin Coal Mining Co Pty Ltd v Nyungar People [2005] NNTTA 100; (2005) 196 FLR 319 at [36]-[38] and cases cited therein). The entitlement only extends to determined holders of native title and not claimants. The right to compensation arises in either of the following two ways.
The mining legislation (Mining Act in Western Australia) directly provides for the compensation.
Alternatively, the similar compensable interest test under the NTA is satisfied in that compensation is payable to a holder of ordinary (freehold) title under the relevant mining legislation but no provision is made to compensate native title holders in that legislation, in which case compensation is determined in accordance with Division 5 of Part 2 of the NTA (s 24MD(3) NTA). Division 5 dictates that the compensation must be assessed according to the relevant principles in that mining legislation (s 51(3) NTA). This means that whether the entitlement to compensation arises directly under the Mining Act or by virtue of s 24MD(3) the relevant provisions for assessment of compensation in Western Australia is s 123 of the Mining Act.
The definitions of owner and occupier in s 8 of the Mining Act are:
“ ‘occupier’ in relation to any land includes any person in actual occupation of the land under any lawful title granted by or derived from the owner of the land”;
“ ‘owner’ in relation to any land means —
(a)   the registered proprietor thereof or in relation to land not being land under the Transfer of Land Act 1893 the owner in fee simple or the person entitled to the equity of redemption thereof;
(b)   the lessee or licensee from the Crown in respect thereof;
(c)   the person who for the time being, has the lawful control and management thereof whether on trust or otherwise; or
(d)   the person who is entitled to receive the rent thereof.''
The Tribunal has held that a native title party that is a registered native title claimant over land the subject of a pastoral lease does not fall within the definition of either occupier or owner (Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 at 180-182). The High Court (Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at 167-169 [312]-[318]) basically agreed with this analysis but left open the possibility that the inclusive nature of the definition of occupier could mean that a native title holder could be regarded as an occupier. The High Court also said that native title holders may in appropriate cases fall within para (c) of the definition of owner. Holders of exclusive native title rights and interests would seem to be an appropriate case. It can therefore be accepted that the native title party, as holders of exclusive native title rights and interests, is an ‘owner’ of land and has a right to compensation under the Mining Act assessed according to the same criteria as are applicable to holders of freehold title pursuant to s 123.

Decision

The expedited procedure objection applications are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
11 February 2008