Warden Wilson
In this matter, registered native title claimants Kuruma Marthudunera Native Title Claimant Group objected to Mineralogy Pty Ltd’s application for Miscellaneous Licence 08/58 (the Licence). The basis of the objection was that:
proposed activities by Mineralogy impact upon aboriginal heritage rights and the native flora and fauna in the area; and
Mineralogy had not complied with the provisions of the Mining Act and the Mining Regulations when applying for the Licence.
In particular, Mineralogy had marked out the land and erected a datum post for the Licence, on land subject to the Kuruma Marthurdunera Group’s native title application, without having a s 30 permit to enter private land, which breached s 104(3) of the Mining Act 1978 (WA).
Three other Exploration Licence applicants also objected to the grant of the Licence because, amongst other reasons, the grant would encroach upon their Exploration Licences. The Kuruma Marthudunera Native Title Claimant Group and the three Exploration Licence applicants lodged an Application seeking that the Warden’s Court summarily dismiss Mineralogy’s application for the Licence.
Mineralogy argued that the application for native title did not extend to the North West Coastal Highway and, therefore, a s 30 permit would not be required.
The Kuruma Marthudunera Native Title Claimant Group (and the three Exploration Licence applicants) argued that:
the road reserve of the North West Coastal Highway had been expanded in 2004, and that the specific part of the road reserve formed part of the native title claim;
the Taking Order to acquire the land for the 2004 expansion did not extinguish but rather preserved relevant native title;
the non-extinguishment principle in s 24KA of the NTA operated so that the 2004 expansion did not extinguish or affect the native title claim registered by the Kuruma Marthudunera Native Title Claimant Group.
Further, one of the Exploration Licence applicants (Zanthus Pty Ltd), argued, including by reference to a number of previous orders of the Warden’s Court, that the combined effect of ss 24MD(6A), 253, 226, 233(1)(c), and 227 of the Native Title Act 1993 (Cth) (NTA) is that the grant of a Miscellaneous Licence under any legislation (including under the Mining Act) can only be effected by giving to any registered native title claimant the same “procedural rights” as would be available to a person with a freehold estate in fee simple.
In effect, the argument was that when it is understood that a registered native title claimant is to be treated as if they have ordinary title or freehold title, it must be accepted that they are deemed by force of s 24MD(6A) of the NTA to have rights as if they held private land under the Act.
Warden Wilson accepted this argument, at [52], as well as most of the arguments put forward by Zanthus Pty Ltd (including about the non-extinguishment principle in s 24KA of the NTA).
Warden Wilson found that Mineralogy failed to comply with the requirement to obtain a Permit to Enter, before marking out the land that was the subject of the Licence application. On this basis, the application for the Licence was found to be fatally flawed and the application was summarily refused.
Note: The Warden’s Court is constituted under the Mining Act 1978 (WA) and it has the jurisdiction throughout Western Australia, to hear and determine matters relating to mining tenements.