Albert Little and Others on Behalf of the Badimia People/Western Australia/Wildbeach Corporation Pty Ltd
[2001] NNTTA 35
•9 May 2001
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of the Badimia People/Western Australia/Wildbeach Corporation Pty Ltd, [2001] NNTTA 35 (9 May 2001)
Application No: WO00/351
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE (Native Title Party)
- and -
THE STATE OF WESTERN AUSTRALIA
(Government party)- and -
WILDBEACH CORPORATION PTY LTD
(Grantee Party)
REASONS FOR DETERMINATION
Tribunal: The Hon E M Franklyn QC
Place: PerthDATE: 9TH MAY 2001
Catchwords: Native Title – Future Act – grant of exploration licences – expedited procedure objection – objection application dismissed.
Legislation:Native Title Act 1993 (Cth); Aboriginal Heritage Act, 1972; Mining Act, 1978 (WA);
Cases:Western Australia v Ward (1997) 70 FCR 275 Lee J; Dann v WesternAustralia (1997) 74 FCR 391 at 401-402 Tamberlin J; State of Western Australia/Smith on behalf of the Gnaala Karla Boodja People/South Coast Metals Pty Ltd (WO 99/511 23 June 2000)
BACKGROUND
[1]On the 22nd of March 2000 the State of Western Australia (the State) issued Notice under Section 29 of the Native Title Act, 1993 (the Act) that it proposed to grant to Wildbeach Corporation Pty Ltd (the Grantee) exploration licences 59/974 - 59/977 inclusive (the proposed tenements) the Notice including the statement that it considered the grant of such licences to attract the expedited procedure.
[2]On the 29th of May 2000 Albert Little and Ors on behalf of the Badimia People (the Objector) being registered native title claimants under native title claim WC96/98, lodged an objection application (the Objection) to the inclusion in the Notice of such statement, claiming that the exploration licences “will interfere with the many Aboriginal sites of significance in the area and constitutes a major disturbance to the land and to the claimant’s attachment (including spiritual attachment) to the land”.
[3]On the 6th of September 2000 directions were made by the Hon. C.J. Sumner, a Deputy President of the Tribunal, requiring the State to provide to the Tribunal and the other parties a statement of its contentions, specified information and documents on or before the 1st of November 2000; the Objector to provide to the Tribunal and the other parties on or before the 8th November 2000, a statement of its contentions to include a statement of the nature and location of sites or areas of significance on or adjacent to the proposed tenements, identifying in each case the particular significance of the site or area, a statement of the community or social activities of the native title parties contended to be likely to be interfered with directly by the grant, relevant documents and a statement of the evidence to be given by any witness for the native title party.
The directions made provision for documents of a claimed confidential nature to be provided to the Tribunal in a separate sealed envelope marked “confidential”. The directions also required the Grantee to provide a statement of its contentions, relevant documents and statements of evidence on or before the 15th of November 2000, for all parties to file legal submissions as to Section 237 of the Act on or before the 22nd of November 2000, for a listing hearing on the 22nd of November 2000 and for a hearing date in the week commencing the 11th of December 2000 if the matter were not to be determined on the papers. Liberty was allowed to apply for a variation of those directions. No application was made at any time for any such variation.
[4]The State lodged contentions and documents in support and the Objector lodged contentions and an affidavit in support within the respective times allowed for compliance with the directions.
THE STATE
[5]The documents and information provided by the State include, in respect of each proposed tenement, a scaled topographical map showing the location of the relevant tenement boundaries, its land tenure and that of the surrounding land and information that there are no Aboriginal communities on or within the vicinity of the tenement. It also includes a copy of a search of the Aboriginal Sites Register under the Aboriginal Heritage Act, 1972 (the AHA) which reveals there to be no sites registered in respect of the land the subject of the proposed tenements 59/974, 59/975 and 59/976 but three sites registered in respect of the proposed tenement 59/977. Those three sites are named respectively “Lake Moore Pathway”, “Kunturu” and “Mardaburdar Hill”. The site type of “Lake Moore Pathway” is shown on the Register as “Man-made structure” and its reliability as “unreliable”; the site type of “Kunturu” is shown as “Ceremonial”, “Mythological”, “Man-made structure” and “Artefacts” and its reliability as “reliable”; the site type of “Mardaburdar Hill” is shown as “Man-made structure” and “Artefacts” and its reliability as “unreliable”.
[6]The State’s contentions also describe the land the subject of the proposed tenements as being comprised of pastoral leases 398/616, 3114/602, 3114/427 and unallocated crown land. However the documents submitted with the contentions show the land the subject of the respective proposed grants to be as follows:
59/974: pastoral leases 398/616 and 3114/602 and unallocated crown land
59/975: pastoral leases 398/616 and 3114/427 and unallocated crown land59/976: pastoral leases 3114/467, 3114/602, 3114/1250 and unallocated crown land
59/577:pastoral leases 398/616, 3114/427, reserve 33532 and unallocated crown land.
[7]The contentions draw attention to the provisions of the Mining Act, 1978 (WA) Section 63, (which imposes specific statutory conditions to which the proposed tenement is subject) and Section 20(5), (which imposes restrictions on the exercise of mining tenement rights on pastoral lease hold). They also draw attention to the provisions of Sections 5, 17 and 18 of the AHA which apply to the said lands and advise that, if granted, the proposed tenements will each be subject to endorsements including one drawing attention to the provisions of that Act. The contentions further set out conditions which will be imposed on the respective tenements if granted.
[8]The endorsements to attach to the proposed tenements 59/974, 59/975 and 59/976 are numbered 1 and 2 respectively and are identical with each other. They are also identical with endorsements numbered 1 and 2 to attach to the proposed grant 59/977 which, however, contains a further endorsement numbered 3 as follows:
“The grant of this licence does not include land declared a protected area under Section 19 of the Aboriginal Heritage Act 1972 and described in the notice appearing in the Government Gazette of Western Australia dated 12 May 1973.”
[9]The conditions to be imposed on each of the proposed tenements are identical with each other in respect of conditions numbered 1-6 inclusive. Proposed tenements 59/974 and 59/977, however, each have a further condition numbered 7 restricting interference with and limiting mining within a specified distance from specified geodetic survey stations. Proposed tenement 59/977 has an additional condition numbered 8 as follows:
“The prior written consent of the Minister for Mines being obtained before commencing mining on Anthropological & Archaeological Purposes Reserve 33532.”
[10]I do not otherwise set out the conditions. They are however directed to the restoration and rehabilitation of all of the proposed tenement land following mining operations, and prohibition of the use on the land of mechanised equipment for surface disturbance or excavation on costeans without the approval of the district mining engineer.
THE OBJECTOR
[11]The Objector’s statement of contentions contains no statement of the nature or location of sites or areas of particular significance or of community or social activities contended to be likely to be interfered with.
The Objector’s evidence provided in accordance with the directions is contained in the affidavit of Nicholas Paul Green, Director of Research of the Yamatji Land and Sea Council (YL & SC) sworn the 7th of November 2000. Set out hereunder is the content of that affidavit.
“1. I am employed as Director of Research by the Yamatji Land and Sea Council (the YL & SC) and have responsibility on behalf of the YL & SC for anthropological research within the Badimia WC96/98 native title claim area.
2. It is the general practice of the Objectors to instruct the YL & SC to lodge objections to the application of the expedited procedure to the proposed grant of tenements on their behalf.
3. The Objectors are concerned that exploration and prospecting activity can cause grievous damage to their traditional country and that only through conducting appropriate negotiation can they ensure that such damage will not occur.
4. The Badimia believe that there was a creative period in the world, which some Aboriginal people called the Dreaming. The Badimia people call this time Cudaroo, or the time when the Earth was soft. This was the time when the creative beings travelled over the country and transformed the Earth from a soft and formless state. The creative beings made the features of the Earth and also left spiritual powers in the land.
5. The Badimia further believe that Aboriginal people inherited custodianship of the land and are responsible to care for the country. Particular people and groups then have particular responsibility for certain areas and sites.
6. On the basis of my experience as a Director of Research I believe it is unlikely that the register of Aboriginal sites for the area will be an accurate record of all the sites of significance within the area the subject of the proposed tenements E59/974, E59/975, E59/976 and E59/977.
7. The only way that sites become registered is if an area has been surveyed, or if lay people or researchers report sites when they are recognised, and the results of any such survey or reporting are forwarded to the WA Museum or the Aboriginal Affairs Department.
8. Registered sites in a locality may convey the impression that the whole area has been surveyed. In fact it is likely that when sites are recorded on the register of Aboriginal sites, most of those sites were identified in surveys related to mining developments, road widening or power line installation. As a result, the recording of sites in any given area is likely not to be complete.
9. Under Badimia law, before people go into Badimia country, a senior Badimia man should open up the country. This means that someone who knows the country, who is the custodian of that country, must go and talk to the spirits.
10. Under Badimia law there can be very serious consequences if the right person doesn’t talk to the spirits before you use the country. It is believed that there will be danger for a person going on to land without permission.
11. Although all of the land is special to Badimia people, some parts of the land are particularly significant. Such sites occur with frequency and the land in question contains such sites of particular significance.
12. The very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment is upsetting to the Objector’s community and causes distress to members of that community.”
[12] Section 237 of the Act provides
“237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
[13]The affidavit of Mr Green provides no evidence of any community or social activity carried on by the holders of native title on or in the vicinity of any of the lands the subject of the proposed tenements and so does not give rise to an inquiry into whether the grants or any of them are not likely to interfere directly with the carrying on of any such activity. As I held in State of Western Australia/Smith on behalf of the Gnaala Karla Boodja People/South Coast Metals Pty Ltd (WO 99/511 23 June 2000) the “direct interference” referred to in s237(a) is concerned with interference with the physical aspects of “carrying on community or social activities”. That is consistent with para 20×39 of the Native Title Amendment Bill 1997 Explanatory Memorandum quoted in that case. Nor does Mr Green’s evidence go to establish the existence of a site or area of “particular significance in accordance of their traditions” to the holders of native title.
The inquiry required by Section 237(b) is whether the proposed grant is not likely to interfere with relevant areas or sites. The question of any such likelihood or otherwise only arises if there is evidence of the existence of such an area or site which might be so interfered with. The existence of a relevant area or site is not established by the assertion in paragraph 11 of or any other statement in Mr Green’s affidavit. It is long established that to be a site or area of particular significance, the site or area must not only be significant but must have a special or out of the ordinary significance and that “particular significance” is not determined by a particularity which merely distinguishes one site, area or object from another. Whether or not a site has the relevant particular significance is a matter of evidence and that itself requires the existence and location of the site to be known.
It is not enough to contend or assert that there are many Aboriginal sites in an area not yet discovered and that some are likely to be sites of particular significance. Such sites, if they exist, can have no present significance to any person until their existence is known. Registration under the AHA does not render a site relevantly significant. Section 5 of that Act reveals that sites which require registration and protection under that Act include sites other than those of special significance.
[14]On the 12th September 2000 the Objector sought a Section 150 conference which was directed to be held and was presided over by Member McFarlane. It was terminated without resolution on the 15th December 2000. On the 18th December 2000 the objection was referred to Deputy President Franklyn for hearing.
[15]A listing hearing was held on the 2nd March 2001 when an adjournment was sought by the Objector, represented by Mr D Ritter and Mr C Davies of the Yamatji Land and Sea Council (YL & SC), to enable a heritage survey to be conducted over the relevant and other land. The Grantee’s representative advised of an agreement entered into with the Noongar Land Council over other tenements in the general area and offered to enter into a similar agreement with the Objector. It was agreed that it should forward a copy of that agreement to the YL & SC for consideration. The hearing was adjourned to the 23rd March 2001.
[16]On the 23rd March 2001 Deputy President Franklyn was unavailable for reasons beyond his control and the hearing was adjourned. The Grantee’s representative advised the Tribunal that he had attended a meeting of the Objector Group on the 19th and 20th March in the hope of achieving agreement, but without any success. On Deputy President Franklyn becoming available the Grantee was contacted to ascertain the state of negotiations in relation to the agreement. He stated that he desired the matter to be re-listed for hearing. The matter was then listed for the 17th April 2001.
Advice was received from the YL & SC that Ms H Lawrence, a solicitor employed by the Council, was not available to attend. The Tribunal advised that the listing stood and the Council should send some other officer to represent the Objector. Ms Ozich, a solicitor employed by the Council, attended and advised that she had no instructions. The Grantee advised it wished the objection to be dealt with. Ms Ozich stated that the YL & SC wished to submit further evidence. Deputy President Franklyn advised that time for compliance with the directions had long expired and that he was not prepared to accept further evidence, that the Tribunal was required to act expeditiously, that he was satisfied the matter could be dealt with on the papers and that he proposed to do so.
[17]On the 27th April 2001 the YL & SC sent to the Tribunal a statement of further contentions and an affidavit of Cedric Stileman Davies, a geologist in the employ of the YL & SC, with a letter seeking leave to submit the same. The contentions, in the main, are familiar legal submissions but also complain that the protected area excluded from proposed tenement 59/977 is not sufficiently described in the endorsement excluding it. That submission overlooks the fact that Section 19(3) of the AHA requires a declaration of a protected area to specify the boundaries of the protected area in sufficient detail to enable them to be established. That description is available to the Objector and it is not necessary that it be included in the endorsement. Furthermore, being excluded from the grant it is not part of the proposed future act.
The affidavit of Mr Davies is directed to s237(c) of the Act and expresses his opinion “as a geologist” that the grant of the proposed tenements would create rights whose exercise is likely to involve major disturbance, that opinion being based on his knowledge and experience of mining practices exercised on a mining lease (M20/252) in another area, which practices, he testifies, are permitted within the terms of an exploration licences. His affidavit annexes photographs showing significant degradation of the relevant land. Whether or not the nature of the lands the subject of the proposed tenements and the conditions applicable to them are the same as those which apply to the said mining lease is not made clear.
The relevant question in the present case is whether the exercise of the rights conferred by the proposed tenements is likely to involve major disturbance from the viewpoint of the Australian community generally, taking into account the concerns of the Aboriginal community. It is not to be answered by the opinion of a geologist as to what disturbance may result, but by the circumstances and evidence adduced. On the instructions of Deputy President Franklyn the Tribunal advised the YL & SC that the material would not be accepted unless all parties agreed, that to do so would require the other parties to be served and given an opportunity to respond and would involve further delay. The other parties were advised of the request, and were not prepared to agree to acceptance of the material. The YL & SC was so advised but, because of its concern a hearing was set for the 7th May 2001.
[18]At the hearing on the 7th May 2001 the Grantee confirmed that it wanted the matters heard and Deputy President Franklyn confirmed his earlier advice that he was not prepared to admit the further contentions or the affidavit of Mr Davies, pointing out that it was the Tribunal’s obligation to take all reasonable steps to make a determination as soon as practicable, drawing attention to s36(1) and (3) of the Act. He pointed out that the Objector had had ample opportunity to earlier seek leave to adduce further contentions and evidence. He further pointed out that the objection application had been lodged almost 12 months previously, directions had been made on the 6th September 2000 requiring the Objector to lodge its contentions and statements of evidence by the 8th November 2000 which it had been purported to do, and that to allow further contentions and evidence at the present stage would involve further delay in giving the other parties opportunity to reply and fixing further listing dates.
The Objector’s representative pointed out that the YL & SC had to prioritise its work and preferred to negotiate, that, it seems, being the reason for the request to lodge the further contentions and affidavit. She expressed concern that, in the view of the YL & SC, the boundaries of the protected area created under s19 of the AHA were incorrectly described. It was pointed out that the protected area was declared under s19(4) of the AHA its boundaries were a matter of record and it was not part of the proposed tenements and so not of the proposed future act. It was therefore not a matter for consideration in this determination. The representative then drew attention to s142 of the Act claiming that the Objector was not being given a reasonable opportunity to present its case. That submission was rejected.
[19]I now return to Section 237(c). In Western Australia v Ward (1997) 70 FCR 275 Lee J said,
“The inquiry to be made pursuant to s237 is whether, on its face, the future act gives rise to powers, the exercise of which would infringe s237(a), (b) or (c) if connection of the native title party to the land or water “affected” by the proposed future act is pointed to by the material, such connection being the existence of community life, or areas or sites of particular significance or cultural ties and traditional customs of the native title party that would be affected by any major disturbance of that land or water.”
[20] In Dann v Western Australia (1997) 74 FCR 391 at 401-402 Tamberlin J said,
“It is correct to say that the interpretation of the words “major disturbance” is a question of ordinary statutory construction which involved the ascertainment of the meaning and effect of those words. However, when applying the words, as interpreted, to the facts of any particular case it is necessary to take into account the views of all members of the community without excluding any particular section of the general community. There is no justification discernible in the language of s237(c) for excluding the views of any section of the community. Equally it would be wrong to suggest that the views of any particular section of the community must in all instances prevail or be determinative. The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or waters can be properly characterised as “major”.
The appropriate approach is to take into account the concerns of the Aboriginal community including matters such as community life, customs,
traditions, and cultural concerns of the native title holders. It would be an unduly restrictive approach to refuse to take account of these considerations on the ground that “community life” and Aboriginal “traditions” are covered by pars (a) and (b) of s237 to the exclusion of their consideration under par (c). The reference to community life and traditions in s237(a) and (b) does not displace the mandate expressed in s109(2) that in conducting inquiries account must be taken of the cultural and customary concerns of Aboriginal peoples. In view of the above, the proper conclusion is that it is necessary to take into account the views and concerns of native title holders, but the importance and weight to be assigned to these matters will vary in each particular case according to the circumstances and evidence adduced.”
And at p.395 Wilcox J said
“The word “major” is an adjective of degree. In determining whether a given envisaged disturbance to land or waters amounts to a major disturbance, the Tribunal must make a value judgment. I agree with my colleagues that, in doing this, the Tribunal must give the term “major disturbance” its ordinary English meaning. It must consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a “major disturbance” even if it would be unimportant to non-Aboriginals.”
It must be borne in mind that both of the above mentioned cases were concerned with s237 as it was prior to the September 1998 Amendments. Section 237(a) no longer refers to “community life” but to “the carrying on of community or social activities”. There is no evidence of community or social activities or even of community life on the lands the subject of the proposed grants. Further it is of some significance that the Objector’s evidence does not claim any of the other registered Aboriginal sites or the area of Reserve 33532 to be of particular significance. Indeed it does not refer specifically to any of the registered sites or at all to the Reserve.
The most that can be gained from the Objector’s evidence is that the proposed tenements are situated on the Objector’s traditional country. Interpreting the expression “major disturbance” in accordance with the decision in Dann I find on the evidence that the grant of the tenements is not likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance within the meaning of s237(a) of the Act.
DETERMINATION
The Tribunal determines that the grant of each of Exploration Licences E59/974, E59/975, E59/976 and E59/977 is an act which attracts the expedited procedure.
Hon EM Franklyn QC
Deputy President
9th May 2001
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