McKerracher J
This case concerned an appeal to the Federal Court on the National Native Title Tribunal’s decision that the expedited procedure under s 32 of the Native Title Act 1993 (Cth) (‘NTA’) did not apply to the grant of an exploration licence under the Mining Act 1978 (WA). The relevant claim was an undetermined claim in the Pilbara region and the proposed area for the mining tenement contained a Registered Aboriginal Site.
Background
In deciding whether to apply to expedited process, the Tribunal had to consider all of the relevant evidence and decide whether the likely disturbance to land or waters could be properly characterised as ‘major’. The grantee party, Mining Equities Pty Ltd, submitted to the Tribunal that it was ‘fully aware of the responsibilities that any major disturbances to the land and the waters are to be keep [sic] to a minimum and [the grantee party] will always make full disclosure of this to the [native title party]’. The Tribunal interpreted this to mean that the grantee party anticipated major disturbances.
Submissions
WA contended that the Tribunal failed to undertake the predictive assessment required for a determination under s 32(4) of the NTA because it relied on the grantee’s statement as an admission and that there was no evidence to support the Tribunal’s determination that the proposed grant of the licence was not unlikely to involve major disturbance to land or waters. The essence of the State’s case rested on the contention that the grantee party’s statement was just clumsily worded.
Decision
Noting that the assessment requires the Tribunal to make a predictive assessment of the likelihood of that a proposed future act will involve major disturbance to land or water, the Court found that there was no defect in the Tribunal relying on statements made in submissions that constituted admissions. The Court emphasised that the statement was contained within a written submission signed by the Director of the grantee party. On this basis, the Court concluded that there was no error and dismissed the appeal.