Wilson M
Sandfire Resources NL applied for Miscellaneous Licences over land within the Jidi Jidi native title determination area. Jidi Jidi Aboriginal Corporation (JJAC) lodged objections to the applications. JJAC later sought to amend those objections, and Sandfire objected to those proposed amendments.
Background
The proposed amended objections alleged that the activities allowed under the licences would ‘cause social and cultural disruption’ to the Nharnuwangga, Wajarri and Ngarlawangga people (NWN people - represented by JJAC), and that any conditions imposed would not be sufficient to protect those people. In the alternative, JJAC wanted any grant of the licences to be subject to conditions that would protect the native title holders.
Submissions
Sandfire argued that JJAC should not be allowed to allege that Sandfire’s activities would interfere with native title rights and interests, because the NWN people had entered into an Indigenous Land Use Agreement (ILUA) with the State of Western Australia in which they agreed not to object to tenement applications on the grounds of interference with native title rights and interests or Aboriginal heritage. Sandfire said that this ILUA was the reason that JJAC was amending the objections, to remove the reference to interference with native title interests and replace it with a reference to social and cultural disruption. Sandfire argued that the Warden should uphold the terms of the ILUA (even though Sandfire was not a party to it).
Decision
The Warden noted that the Mining Act 1978 (WA) does not put limits on who may object to the grant of a mining tenement, or on the grounds on which they can make objections. Further, there is no provision in the Native Title Act 1993 (Cth) that prohibits the lodging of an objection after a native title determination or entry into an ILUA. The Mining Act 1978 (WA) gives the Warden discretion to decide whether or not to hear an objection, or to limit the scope of an objection. The Warden noted that the ILUA was a private agreement between the State and the NWN people and considered that they could not bind or constrict the operation of the Mining Act 1978 (WA). If the state wished to enforce its rights under the ILUA it was required to do so in a Court of appropriate jurisdiction.
Accordingly, the Warden did not consider that the ILUA precluded JJAC from objecting on the grounds of social and cultural disruption. Further, the Warden did not consider that the Aboriginal Heritage Act 1972 (WA) provided protection against disturbance to the social and cultural structure of an Aboriginal community. The proposed amendments to JJAC’s objections were allowed.