Parker on behalf of The Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker on behalf of The Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

The appeal was dismissed because the Tribunal did not conflate interference under s 237(b) of the Native Title Act 1993 (Cth) with breach of s 17 of the Aboriginal Heritage Act 1972 (WA), and, although it made no express finding identifying all activities that would constitute interference, it was aware of and accepted the confidential evidence that even walking on the Barimunya site without senior members would breach the native title party's laws and customs. Its reasons, including references to fencing, designated area status and restrictions on BHP employee access, showed that it took into account the degree of exclusion required to avoid interference, including low impact exploration.

Jurisdiction
Australia
Judgment Date
06 July 2007
Procedural Posture
Native Title Future Act Expedited Procedure Objection Appeal / Appeal From the National Native Title Tribunal
Outcome
Appeal dismissed with costs.
Legal Topics
['future Act Objection' 'expedited Procedure' 'interference With Areas or Sites of Particular Significance' 'exploration Licence' 'confidential Cultural Heritage Evidence']
['native Title' 'aboriginal Heritage' 'administrative Law'] ['future Act Objection' 'expedited Procedure' 'interference With Areas or Sites of Particular Significance' 'exploration Licence' 'confidential Cultural Heritage Evidence']

Case Brief

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Procedural Posture

Native Title Future Act Expedited Procedure Objection Appeal / Appeal From the National Native Title Tribunal

Legal Issues

  1. 1 ['Whether the Tribunal failed to consider whether the grant of exploration licence E47/1385 was likely to interfere with the Barimunya site or area otherwise than by conduct in breach of s 17 of the Aboriginal Heritage Act 1972 (WA) or conduct approved under s 18 of that Act.' 'Whether the Tribunal failed to consider whether Low Impact Exploration as defined in the Regional Standard Heritage Agreement would constitute interference with the Barimunya site or area.' 'Whether the Tribunal failed to consider the particular significance of the Barimunya site or area to the native title party and what might comprise interference with that site in accordance with traditional laws and customs.']

Ratio Decidendi

The appeal was dismissed because the Tribunal did not conflate interference under s 237(b) of the Native Title Act 1993 (Cth) with breach of s 17 of the Aboriginal Heritage Act 1972 (WA), and, although it made no express finding identifying all activities that would constitute interference, it was aware of and accepted the confidential evidence that even walking on the Barimunya site without senior members would breach the native title party's laws and customs. Its reasons, including references to fencing, designated area status and restrictions on BHP employee access, showed that it took into account the degree of exclusion required to avoid interference, including low impact exploration.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The appellants are to pay the respondents' costs."]