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Editors --- "Bruce Monadee and Others on behalf of the Ngaluma Injibandi and The State of Western Australia and Auriferous Mining Pty Ltd, Red Bluff Nominees Pty Ltd - Case Summary" [2002] AUIndigLawRpr 59; (2002) 7(4) Australian Indigenous Law Reporter 29

Court and Tribunal Decisions - Australia

Bruce Monadee and Others on behalf of the Ngaluma Injibandi and The State of Western Australia and Auriferous Mining Pty Ltd, Red Bluff Nominees Pty Ltd

National Native Title Tribunal (Deputy President the Hon EM Franklyn QC)

26 June 2002

Application No.W0O01/164 (E47/1021)

Native title — future act — expedited procedure objections application to proposed grant of exploration licence — evidence insufficient to support objection on s 237(a) grounds but such that objection on s 237(b) grant upheld — observations on ss 10 and 15 of the Aboriginal Heritage Act 1972 (WA) — determination that grant does not attract the expedited procedure

Facts:

The State of Western Australia proposed to issue a mining exploration licence pursuant to s 32 of the Native Title Act 1993 (Cth) (NTA) and gave notice under s 29 of the NTA that the grant was a future act that attracted the expedited procedure. However the native title party argued that the licence fulfilled all three grounds of objection to the assertion that the act attracted the expedited procedure set out in s 237 of the NTA: namely that the activity permitted under the proposed licence was likely to interfere with the native title party’s social and community activities in relation to the area the subject of the proposed licence (s 237(a)); cause damage to or destroy places of particular significance to the native title party (s 237(b)); and cause major disturbance to land the subject of the proposed licence (s 237(c)).

In support of its contention that s 237 applied to the grant of the proposed licence, the State provided evidence that there was no Aboriginal community within the vicinity of the proposed exploration licence; there were nine sites on the register of Aboriginal sites maintained by the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA), of which six were within the proposed licence area; there were a number of granted exploration licences adjacent to the proposed licence and several other exploration licences and mining leases under application in the vicinity of the proposed licence; improvements (including airstrips, tracks and wells) had been made within existing tenements and the pastoral lease 3114/558 (CL311/1966) (known as Sherlock Station) over which the proposed licence (and native title claim) extended; and the north-west coastal highway traversed the proposed licence area.

The grantee party relied on the submissions of the State. The native title party relied on the affidavit evidence of four witnesses in support of their contentions: Ngarluma and Yindjibarndi elders and members of the Ngarluma Yindjibarndi native title claim WC99/104 Mr Frank Smith and Mrs Dora Solomon, and Yamatji Land and Sea Council employees Ms Pamela McGrath and Mr Cedric Davies. The objection was heard ‘on the papers’.

Held, determining that the act is not an act attracting the expedited procedure:

1. In relation to s 2137(a), the Member found that the native title party had failed to provide evidence as to: the impact upon social and community activities of past and present mining and pastoral activities within the proposed licence or its vicinity, how often or how many members of the native title party engaged in the alleged social and community activities, and whether such social and community activity was conducted within the proposed licence or its vicinity. Consequently, there was insufficient evidence ‘to lead to a conclusion that the grant of the proposed licence is likely to interfere directly with the activities referred to in s 237(a)’. This conclusion was supported by evidence of previous impact from existing mining tenements and pastoral activity in the vicinity of the proposed licence, and the distance away from the nearest Aboriginal community: [9], [14].

2. Not all Aboriginal sites fall under the provisions of s 237(b). That provision relates only to sites of particular significance, in the sense of special or out of the ordinary significance to relevant native title holders, in accordance with their traditions: [12.2].

3. It could not be inferred from the fact that a place is registered on the register of Aboriginal sites that it was also a site or area of particular significance for the purposes of s 237(b). Thus, while the native title party’s contentions referred to a number of registered sites, the fact that witnesses made no reference to them in their evidence or (as in relation to the law ground referred to by both witnesses) failed to identify their location in terms of grid references, meant that the Member could not conclude that these sites were sites of relevant particular significance: [12.2].

4. Although the native title party failed to provide precise information about the location of sites and areas alleged in its evidence to be of particular significance, and had not given evidence as to how it identified the boundaries of the proposed licence area or to specify whether places referred to in its evidence were within or outside the licence area, some witnesses identified in detail some sites which were of the requisite significance. The lack of information identifying the precise location of these sites, coupled with the lack of evidence from the grantee party as to its intentions in relation to the conduct of exploration activities, meant that these activities were likely to interfere with some sites of particular significance to the native title party and so the proposed grant was not one attracting the application of the expedited procedure: [16], [17], [20]. ?