Wilfred Hicks/Western Australia/Legend Mining NL - [2000] NNTTA 324

NATIONAL NATIVE TITLE TRIBUNAL

Wilfred Hicks/Western Australia/Legend Mining NL, [2000] NNTTA 324 (25 September 2000)

Application No: WO99/71

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

- and -

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

Wilfred Hicks (the Objector)

- and -

The State of Western Australia (Government party)

- and -

Legend Mining NL (grantee party)

REASONS FOR A DETERMINATION

Tribunal:       The Hon E M Franklyn QC
Place:             Perth
Date:              25 September 2000

Catchwords: Native Title – future act – expedited procedure objection application – determination on the evidence that expedited procedure attracted observation that the question of likely interference requires evidence of the existence of the thing likely to be interfered with.
Legislation:Native Title Act 1993 (Cth) s 237

BACKGROUND:

By Notice under s 29 of The Native Title Act 1993 (the Act) lodged with the Tribunal on 1 June 1999 and subsequently published, the State advised its intention to grant to Legend Mining NL (the Grantee) Exploration Licence No. E47/932 over land comprising 3.19 kms² situate 7 kms westerly of Roebourne (the proposed tenement), the Notice stating that the State considers the grant to be an act attracting the expedited procedure. The tenement forms part of the land in respect of which the Wong-goo-tt-oo Group, of which Wilfred Hicks (the objector) is one, are the native title claimants (WC98/40). By an objection pursuant to s 32(3) of the Act, lodged on 9 August 1999, the objector objected to the inclusion of such a statement in the Notice. The objection stated, “the area may contain sites of heritage and cultural significance to Aboriginal people”. Despite the requirement of Form 4 and the provisions of s 76 of the Act, the objection does not include a statement of the likely impact of the Act on the community or social activities of the native title holders, area or sites of particular significance and any land or waters concerned. Where required by Form 4 to provide an outline of the type of evidence the objector would produce to the Tribunal, the objection states “Aboriginal, heritage type survey archaeological, anthropological report”. In its terms the objection appears to raise only the issue of s 237(b) of the Act.

The hearing of the objection application was delayed for some time because of the failure of the objector to provide to the Tribunal and serve on the other parties, as directed by the Tribunal, statements of the contentions and evidence on which he relied in support of the objection. When provided, those documents raised grounds of objection under s 237(a)(b) and (c) of the Act which, however, were accepted as being validly raised despite no objection having been lodged in respect of (a) and (c).

By consent, the matter came on for hearing in Perth on 22 March 2000, the objector’s evidence being taken by teleconference from Roebourne. At the hearing, the State relied on the documentary evidence produced to the Tribunal and…

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.

Keep reading for free

Create a free CaseChat account to read Wilfred Hicks/Western Australia/Legend Mining NL and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] NNTTA 324
Decision Date: 25 September 2000

CaseChat Overview and Summary

Wilfred Hicks, a native title claimant, sought to object to the use of an expedited procedure by Legend Mining NL in relation to a future act that would interfere with his native title rights. The dispute was heard in the Federal Court of Australia, where the court had to determine whether the expedited procedure was appropriate for the circumstances. The primary legal issue was whether the expedited procedure was applicable in the absence of evidence confirming the existence of the thing likely to be interfered with. The court was required to assess whether the native title rights in question were sufficiently established to warrant the use of an expedited procedure.

The court examined the evidence presented and found that the native title rights claimed by Hicks were not sufficiently substantiated to allow the use of an expedited procedure. The judge observed that for the expedited procedure to apply, there must be clear evidence of the existence of the thing that would be interfered with. In this case, the court determined that the evidence did not sufficiently establish the existence of the native title rights in question. As a result, the court held that the objection to the use of the expedited procedure was well-founded. The judge concluded that the native title rights needed to be more clearly established before the expedited procedure could be applied.

The court's decision emphasised the importance of clear evidence in determining the applicability of the expedited procedure in native title disputes. The judge's ruling underscores the necessity for claimants to provide robust evidence to substantiate their claims, particularly when seeking to object to the use of an expedited procedure. The court's findings highlighted the procedural requirements and the need for a thorough examination of the evidence before proceeding with an expedited process. Ultimately, the court's determination ensures that the rights of native title claimants are properly considered and that the procedural integrity of the native title determination process is maintained.

Orders