Clarke, Jennifer --- "Objections by Western Desert Puntukurnaparna Aboriginal Corporation to Applications for Exploration Licences by BHP Minerals Ltd and CRA Exploration Pty Ltd" [1993] AboriginalLawB 34; (1993) 3(63) Aboriginal Law Bulletin 17

• Objections By Western Desert Puntukurnaparna Aboriginal Corporation To Applications For Exploration Licences By Bhp Minerals Ltd And Cra Exploration Pty Ltd
• Background
• Questions For The Warden
• (I) Whether The Land Was Open For Mining
• (Ii) The Warden's Power To Recommend Grant Where Objection Made On Native Title Grounds

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Objections by Western Desert Puntukurnaparna Aboriginal Corporation to Applications for Exploration Licences by BHP Minerals Ltd and CRA Exploration Pty Ltd

Warden's Court, Perth

12 March, 1993

Warden French

by Jennifer Clarke

Background

Under s59 of the Mining Act 1978 (WA), the Warden hears applications for exploration licences and objections from any person before recommending grant or refusal to the Minister, who has a discretion to grant the licence on such terms and conditions as he/she determines or to refuse it.

On April 20, BHP Minerals Ltd and CRA Exploration Pty Ltd ('the applicants'), applied for exploration licences in the Pilbara mineral field. On May 26, 1992, Western Desert Puntukurnaparna Aboriginal Corporation ('the objector'), objected. On September 16, 1992, the objector applied to add the ground of unextinguished native title.

Questions for the Warden

Was a claim of unextinguished native title a matter properly to be taken into account, if at all, by the Warden in making a recommendation to the Minister? Issues considered by the Warden were:

(i) Whether the land was "open for mining" within s18 of the Mining Act; and

(ii) If the land was so open, whether the Warden might recommend grant only subject to the rights and interests comprised in the native title.

(i) Whether the land was open for mining

Section 18 of the Mining Act provides that:

"All Crown land, not being Crown land that is the subject of a mining tenement, is open for mining..."

'Crown land' is defined in s8(1) as:

"All land in the state except -
(a) land that has been reserved for or dedicated to any public purpose; (b) land that has been lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown;
(c) land that is subject to any lease granted by or on behalf of the Crown other than -

(i) a pastoral lease within the meaning of the Land Act or a lease otherwise granted for grazing purposes only;
(ii) a lease for timber purposes; or
(iii) a lease of Crown land for the use and benefit of the Aboriginal inhabitants;

(d) land reserved or constituted as a townsite under the Land Act."

The land under consideration was shown on a Department of Minerals and Energy plan as partly 'vacant Crown land' and partly reserve (Rudall National Park).

The objector submitted that the expression 'Crown land' was limited to land of which the Crown was the beneficial owner, and excluded land over which the Crown held the bare radical title only. The applicants argued that the Crown's power to legislate to allow exploration and mining on land in respect of which it held the bare radical title led to a conclusion that such land was included in the description of 'Crown land' for the purposes of the Act.

The Warden found the use of the expression 'Crown land' was of no consequence for the land described. This contrasted with the use of the expression 'all land of the Crown' - which connoted Crown beneficial ownership - in earlier legislation. In the present case:

"all land in the State, apart from the specific exceptions referred to, is open for mining. This may include land that is subject to, or 'burdened' by a claim of native title ... [T]his interpretation is further reinforced by the provisions of Division 2 and 3 (of Part III) that provide for private land contained in public reserves and for private land to be 'open for mining' but in accordance with ... specific provisions ... to protect the special interests ... [in those] categories of land".

(ii) The Warden's power to recommend grant where objection made on native title grounds

The objector submitted that the Warden's power to recommend grant of exploration licences was limited to a power to recommend that such grant be subject to the native title.

The Warden found that:

"The enactment of the Mining Act itself does not appear to effect an extinguishment of native title as there is no clear and plain intention expressed or implied in the legislation".

However, the objector submitted that provisions of the legislation affording greater protection to the holders of 'private land' than to native title holders were potentially inconsistent with s9 (or s10) of the Racial Discrimination Act 1975 (Cth).

The Warden stated that:

"Although it is clear that there is no provision in the Mining Act for particular protection or compensation to be afforded to holders of native title the absence of any such protection does not affect [sic] any extinguishment of native title. Grant of a tenement over private land with or without the protection of the provisions of the Mining Act can never amount to an appropriation of that land ... If the grant of mining tenement does have the effect of extinguishing native title without provision for compensation to the holders of that native title on just terms then that may contravene ... section 9 or 10 of the Racial Discrimination Act".

She considered that any discrimination in the application of the 'private land' provisions should be the subject of separate litigation directed at the discriminatory conduct complained of. (Litigation to establish that those provisions are inconsistent with s10 of the Racial Discrimination Act may be more appropriate).

Whether or not "the restricted powers conferred by an exploration licence' would extinguish native title "would depend on the specific nature and extent of the particular native title concerned". (The possibility of partial extinguishment does not appear to have been considered). As no evidence of the relevant native title was before her, she reached no conclusion on this point. The objector's submission that, although an exploration licence of itself might not extinguish native title, acts done under it might have this effect was rightly rejected: the Warden affirmed that a clear and plain intention on the part of the Crown was required.

If a grant of an exploration licence did amount to extinguishment and was therefore unlawful, whether or not conditions should be imposed on it was a matter for the Minister. Failing to recommend that conditions be imposed did not amount to discrimination by the Warden. Thus:

"[W]hen the Minister comes to consider the question of native title in deciding to accept a recommendation to grant the exploration licence he would have to consider evidence put before him by way of submissions on the issues of the existence of the native title and whether in fact that title would be extinguished by a grant of an exploration licence".