Chubby Jones, Alice Smith and Others/Western Australia/Taipan Resources NL
[2000] NNTTA 343
•1 November 2000
| NATIONAL NATIVE TITLE TRIBUNAL |
Chubby Jones, Alice Smith and Others/Western Australia/Taipan Resources NL, [2000] NNTTA 343 (1 November 2000)
| Application No: WO99/620, WO99/621, WO99/622 |
| IN THE MATTER of the Native Title Act 1993 (Cth) |
| - and - |
| IN THE MATTER of an inquiry into an expedited procedure objection application |
| Chubby Jones, Alice Smith and Others (native title party) |
| - and - |
| The State of Western Australia (Government party) |
| - and - |
| Taipan Resources NL (grantee party) |
| REASONS FOR A DETERMINATION |
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 1 November 2000
Catchwords: Native Title – future act – expedited procedure objection application – no evidence to support objections under s 237(a) or (b); insufficient evidence to support objection under (c) – Objection to expedited procedure dismissed.
Legislation:Native Title Act 1993 (Cth) s 237. Aboriginal Hertigate Act 1972.
Cases:State of WA v Derrick Smith & Ors on behalf of Gnalla Karla Boodja People (WO99/511 unreported) 23.6.2000. Deputy President The Hon E M Franklyn QC.
Dann v Western Australia (1997) 74 FCR 391
BACKGROUND:
On 8 September 1999 the State of Western Australia (the State) issued a notice under s 29 of the Native Title Act (1993) (the Act) that it proposed to grant exploration licences E1130, E1131 and E1132 (the proposed tenements) to Taipan Resources NL (the grantee), the notice including the statement that it considered each such grant to attract the expedited procedure under the Act. The notice allowed until 10 January 2000 for the lodgement of objections against the inclusion of that statement.
On 8 December 1999 the above named native title parties on behalf of the claimants under native title claim WC96/61 (the native title party), lodged objections to the inclusion of that statement in the notice in respect of each of the proposed tenements, referring in each such objection, however, to Sipa Exploration NL as grantee. It seems that it so addressed the grantee in error but as no point is taken in respect thereof I accept each objection as valid in respect of the proposed grants. Each such objection relies upon s 237(a)(b)(c) for its claim that the relevant grant is not an act attracting the expedited procedure.
By letters dated 29 January 2000, the Tribunal advised the State, the native title party and the grantee that a preliminary conference in respect of the objection would be held on 7 February 2000 to consider the directions to be made for an inquiry in respect of each such objection. It enclosed a draft set of directions for consideration at that conference.
The native title party did not attend and was not represented at the conference on 7 February 2000. The question of an agreement between the grantee and the native title party was raised and the grantee advised it was not prepared to enter into any agreement in respect of the proposed tenements until such time as its initial low impact exploration program indicated the need for substantial ground disturbing activity. The conference was adjourned until 29 February.
On 29 February the native title party advised that no agreement had been reached with the grantee as to the grantee undertaking a full heritage survey in respect of each of the proposed tenements. The native title party and the grantee agreed to provide to the Tribunal a joint statement as to the issues between them in that respect. The conference was adjourned to 7 April 2000.
On the 7 April there was no agreement as to the proposed joint statement. The possibility of a s 150 conference was raised but abandoned as the grantee was not prepared to participate. Directions were then set by the Tribunal member.
The directions required, in the of case each such tenement, the State to lodge and serve its statement of contentions and documents relevant to the inquiry on or before 21 April 2000; the native title party to lodge and serve, on or before 28 April 2000, its statement of contentions (to include a statement of the nature and location of sites or areas of particular significance on or adjacent to the proposed tenements with identification in each case of the particular significance and a statement of the community of social activity said to be likely to be directly interfered with by the grant), all relevant documents including affidavits to be relied upon, and a statement of the evidence to be given by any witness for the native title party; the grantee to provide its statement of contentions, together with all relevant documents and any statement of evidence to be given by any witness for it on or before 5 May 2000; and each party to provide an outline of legal submissions on or before 12 May 2000. The matter was listed for hearing in the week commencing 22 May 2000 unless it was to be determined on the papers.
On 30 April 2000 the State lodged the documents on which it relied. They revealed inter alia,
(a)Exploration licence 1130 to be situate on pastoral leases 3114/647 and 3114/1236 and on unallocated Crown land, there to be no Aboriginal communities within its vicinity and no Aboriginal sites registered within a selection area for examination which included the proposed tenement.
(b) Proposed exploration licence 1131 to be situate on pastoral lease 3114/647 and on unallocated Crown land, there to be no Aboriginal communities within its vicinity and no Aboriginal sites registered within a selection area which included the proposed tenement.
(c) Proposed exploration licence 1132 to be situate on pastoral leases 3114/647 and 3114/1218 and on unallocated Crown land, there to be no Aboriginal communities within its vicinity and no Aboriginal sites registered within a selection area which included the proposed tenement.
(d) That each proposed tenement would contain an endorsement on the grant calling the grantee’s attention to the provisions of the Aboriginal Heritage Act 1972 (the AHA) and relevantly would be subject to conditions (set out in the papers) requiring governmental consent for the use of machinery and mechanised equipment for surface disturbance or excavations of costeans and requiring replacement of topsoil and capping, filling or otherwise rendering safe all surface holes drilled for exploration.
(e) The proposed tenement E08/1130 to abut two exploration licenses to its north, one to its west, two to its south, the proposed tenement E08/1131 to its west and to be in close proximity to at least two others. The proposed tenement, E08/1131 to be in close proximity to at least three exploration licences to its north and two to its south, and to abut proposed tenements E08/1130 to its west and E08/1132 to its east; and proposed tenement E08/1132 to abut one exploration licence to its north, one to its east, one to its south, the proposed tenement E08/1131 to its west and to be in close proximity to at least one other to its west.
By letter dated 14 April 2000 the native title party, by its solicitor, informed the Tribunal (inter alia) that it had neither the time nor the resources to allocate to a formal hearing, that it had provided to the grantee a draft heritage protection agreement as a basis for negotiation which the grantee was not prepared to enter into in respect of wide spaced drilling, and that the grantee’s proposal was to identify and avoid sites registered by the Registrar of Aboriginal Sites, to confine its exploration activities during the first 12 months to non-ground disturbing activities and wide spaced drilling and was prepared to enter into a heritage agreement if more intensive ground disturbing work were subsequently required. The native title party considered that proposal inadequate to protect Aboriginal heritage and to be likely to result in interference or damage to areas or sites of particular significance.
10. The State’s contentions in respect of each proposed tenement were lodged on 20 April 2000 and, inter alia, asserted there to be no Aboriginal communities situate on the land, drew attention to the mandatory conditions imposed on mining tenements by ss 63 and 20 of the Mining Act 1978 (the Mining Act), to the conditions it would impose independently of that Act on the grants, and to the provisions of ss 5, 17 and 18 of the AHA. It contended that the grant of each proposed tenement was an act attracting the expedited procedure.
11. On 27 April 2000, the native title party lodged a statement of contentions in respect of each of the proposed grants, together with a copy of an affidavit of Charles Smith, sworn the same date, such affidavit in its terms being filed only in respect of objection WO99/622, and so in respect only of exploration licence 1130, but which appears from the covering letter lodging it, to be intended to support each objection. The contentions commence with the statement that “The central point in issue is the level of ground disturbance which must occur before surveys must be undertaken to protect Aboriginal heritage.” They assert the Register of Aboriginal Sites to be incomplete and inconclusive as to the existence of sites on the proposed tenements, that other surveys of the general area have revealed an area rich in ethnographic and archaeological sites of importance and that the proposed tenements are in respect of an area in which there is a high risk of inadvertent and irremediable defiling of important sites. No particulars of any sites, either in the general area, or on or in the vicinity of any of the proposed tenements, have been provided. The contentions concede the grantee to propose to confine its exploration activities for the first year to non ground disturbing activities and wide spaced drilling with spaces more than 200 metres apart. Further, that the grantee has indicated its willingness to enter into a heritage agreement before commencing extensive ground disturbing work if such work is required at some later date, including drilling with spaces of less than 200 metres. The native title party contends that ‘wide-spaced drilling’ has the potential to damage Aboriginal sites and areas of particular significance. It complains of the grantee’s present refusal to enter into any type of heritage protection survey. The contentions further assert that the native title party cannot fund a survey of the area to give specific information as to sites and that the Elders need to walk the ground to identify the same and cannot identify them from maps. No explanation, other than the lack of funding to take Elders to the proposed tenements, is given as to why prior to or subsequent to the lodging of the objection, no one on behalf of the native title party has sought to identify whether or not there are any sites of particular significance or otherwise on any of the proposed tenements. The contentions assert that because of the large number of important sites in the area the subject of the native title claim WC96/61, “it cannot be said that the grant of the tenements are not likely to interfere with areas and sites of particular significance”, that “the ability of the Aboriginal people to utilise the area for cultural purposes is likely to be impeded if the grantee is given the right to explore the area”, and that “the remaining undisturbed sites in the claim area [WC96/61] whether on the area applied for by Taipan or generally, are important to the holding of ceremonies for the handing on to successive generations dreaming and cultural information, this being vital to the continuation of Aboriginal culture in the area”.
12. On behalf of the native title party, Charles Smith deposed by affidavit as follows:
“1.I am a member of the Bunjima language group being one of the three language groups on behalf of whom the above named native title claim is made (“the Claim”). I have been appointed Chairperson of the claimant group and am authorised in that capacity to act as spokesperson for the Claimant group.
2.The Claim covers a large part of the central Pilbara and includes many areas which have been the subject of extensive mining activities, including a great deal of iron ore and other mining carried on prior to the Native Title Act being enacted.
3.Numerous site surveys have been carried out in relation to the Claim area. Many of these were done at the instigation of mining companies in order to comply with their obligations under the Aboriginal Heritage Act. These surveys have revealed that as a general principle the area of the Claim is rich in both ethnographic sites and archaeological sites of significance to aboriginal people. This is consistent with the beliefs of the claimants that the area has been inhabited by aboriginal people for many thousands of years.
4.The large scale destruction of sites by mining activities has lead to increasing concern by the claimants to protect what sites remain. The living culture and spiritual beliefs of our people depend on the continued preservation of those sites.
5.In recent years the claimants increasingly held ceremonies on the Claim areas as changes on legal and social levels have permitted us more access to our traditional lands. This is facilitating the continued handing down of dreaming and other cultural information from the elders to successive generations. Areas which are relatively untouched, such as the land the subject of the Taipan exploration license applications are vitally important to the continuation of our traditional culture and give the large areas granted to mining companies prior to the Native Title Act it is vital to the continuation of our culture that we protect what remains.
6.We have not been able to carry out a site survey of the area applied for by Taipan. The Claimants do not have any ATSIC or other government funding for the Claim and are funding the Claim out of their own limited resources. The Claimants have requested Taipan to fund a survey but Taipan have refused. The Claimants are not presently in a position to specify what specific sites exist within Taipans application but can say that it is expected that in common with the other areas of the Claim area which have been surveyed in the past, that numerous sites of significance exist there. The map is insufficient for our elders to identify sites as the elders need to walk the ground to get their orientation. Parts of the area applied for are very isolated and accessible only by quality 4 Wheel drive vehicles. The Claimants do not have funding for this purpose.”
13. On 11 May 2000 the grantee advised that it would rely on the contentions and documents filed by the State.
14. At a listing hearing held on 12 May and following discussion with the parties, the Tribunal member conducting that hearing advised that the objection application would be dealt with ‘on the papers’ and would be referred to another member.
15. Delays then occurred in the matter being referred for determination while the State, in the light of the decision of the Full Court of the Federal Court in Ward 170ALR159, considered its position and its contentions and whether it might challenge the jurisdiction of the Tribunal. A directions hearing was held on 4 July 2000 to ascertain the State’s position and after discussion with the parties’ representatives, and to enable the State to complete its investigations, was adjourned by consent. It was brought on again on 7 September 2000 when the State advised that, in its opinion, none of the proposed tenements was on enclosed pastoral land or on land the subject of a previous mining tenement such as, on the authority of Ward, would extinguish native title. There was discussion in which the native title party’s representative was asked whether it had filed all the evidence on which it intended to rely. The Tribunal was advised that there would be a meeting with the native title party on 28 September 2000 when instructions for further evidence might be obtained.. The matter was adjourned to 12 October with directions requiring the native title party to lodge and serve any further contentions and statements of the evidence to be relied upon by that date. On 12 October the native title party advised it did not propose to advance further papers contentions or evidence. The grantee confirmed it would rely on the State’s contentions and documents and the State confirmed that it was not raising any jurisdictional issue. All parties agreed that the matter could be dealt with on the papers.
EVIDENCE – NATIVE TITLE PARTY
16. It is clear that Mr Smith’s evidence is, in the main, concerned with the whole area of land the subject of WC96/61 which, as he deposes, covers a large part of the central Pilbara. He provides evidence of connection with the land but no evidence of the carrying on of any community or social activities by the holders of native title on, or in the vicinity of, any of the proposed tenements likely to be interfered with by any such grant or at all. Nor does he provide evidence of the existence of any sites of particular significance in accordance with tradition to the holders of native title likely to be relevantly interfered with or at all. He speaks of the importance of “areas of land which are relatively untouched, such as the land the subject of the Taipan exploration licences, being vitally important to the continuation of our traditional culture”, but gives no indication of the extent or location of the relatively untouched areas within WC96/61 or of any particular significance attaching to any such area, other than that they are relatively untouched and so important to the continuation of traditional customs. In my opinion, that statement is not evidence of an “area … of particular significance in accordance with their traditions to the persons who are the holders of native title in relation to the land concerned” within the meaning of s 237(b) (of the Act).
EVIDENCE – STATE AND GRANTEE
17. The grantee relies on the contentions and documents filed by the State. I have summarised above the relevant purport of those documents, the correctness of which is not challenged.
18. The sole issue in each of the three objection applications is whether or not the proposed grant of exploration licences is an act which attracts the expedited procedure. Unless each of the paragraphs (a), (b), and (c) of s 237 are satisfied, it is not such an act. Whether or not those paragraphs are each satisfied is to be determined on the evidence, the word ‘likely’, as used in each paragraph, to be interpreted as referring to a real or not remote chance or possibility (State of Western Australia v Derrick Smith & Ors on behalf of the Gnaala Karla Badja People: WO99/611: 23 June 2000, Deputy President, The Hon E M Franklyn QC)
CONCLUSIONS
19. Re s 237(a): There is no evidence of the carrying on of any community or social activity of the persons who are the holders of native title in relation to the land concerned. The State’s contentions in each case, supported by its documentary evidence, is that there are no Aboriginal communities on the relevant land. Consequently there are no factual circumstances to give rise to any likelihood of relevant interference within the meaning of s 237(a).
Re s 237(b): The State’s evidence reveals there are no Aboriginal sites registered under the provisions of the AHA on the lands the subject of the proposed tenements. That does not exclude the possibility that there may exist on or in the near vicinity of one or more of the proposed tenements an Aboriginal site or sites which are not so registered. However, the application of s 237(b) requires consideration to be given to the question whether the relevant future act is not likely to interfere with areas or sites of particular significance in accordance with the traditions of the holders of native title of the land concerned. That question requires there to be evidence of the existence of a site which has a “particular” – in the sense of special or out of the ordinary – significance in accordance with those traditions, and such significance being capable of identification. No question can arise as to the likelihood or otherwise of interference of such a site unless there is evidence of its existence. There is no such evidence in this case. Nor does the evidence establish in any case that the land the subject of the proposed tenement is, or contains, or is in the vicinity of, an area of particular significance in accordance with such traditions. The significance to be attributed to the proposed tenements on Mr Smith’s evidence is that, like other areas, it is “relatively untouched by mining activities”. I find that not to be a significance in accordance with the traditions of the native title holders and, in any event, not a relevant “particular significance” in that each of the proposed tenements is but one more of a number of unspecified and unquantified areas also relatively untouched. Consequently, it has no relevant particular significance. I find the grant in each case to be not excluded from being an act attracting the expedited procedure by reason of s 237(b).
Re s 237(c): In considering the effect of this sub-section I have regard to the rights and powers conferred on the holder of an exploration licence by the provisions of the Mining Act, the conditions to be imposed on the grant of the licence and assume, as a fact, that the regulatory provisions of the Mining Act and the provisions of the AHA or any other applicable regulatory regime, will be complied with by the grantee and fairly and properly applied and enforced by the responsible authorities.
There is no direct evidence as to the grantee’s intentions in relation to the exercise of the rights which the proposed tenements will confer. However, I draw attention to the contention of the native title party summarised above which set out the grantee’s general intentions as made known to it in respect of ground disturbing work. I assume that, if found advisable, the grantee will, in the case of each proposed tenement, exercise to the full the rights conferred by the grant but within the framework of the applicable regulatory regime.
It cannot be disputed that the exercise of the rights conferred by an exploration licence will involve disturbance of some sort to the lands the subject of such a licence. The question is whether it will involve “major disturbance” or create rights whose exercise is likely to involve major disturbance within the meaning of s 237(c). The native title party’s contentions do not directly raise that issue but are concerned with impediment to access by Aboriginal people and the risk of interference with, and destruction of, sites of particular significance. Nor does Mr Smith’s affidavit raise the issue of relevant major disturbance. Nevertheless, the issue requires consideration, in my opinion, in the context of the effect of the exercise of the rights conferred by the grant. I have regard to the absence of the evidence specific to the proposed tenements of the carrying on of community or social activities by the holders of native title or of the existence of areas or sites of particular significance in accordance with tradition, to the evidence that there is no resident Aboriginal community on any of the proposed tenements and that each is in close proximity to other mining tenements. I apply the interpretation given in Dann 1997 74 FCR 391 by the Full Court of the Federal Court to the words “major disturbance” and give it its ordinary English meaning, the degree of disturbance being considered in all of its relevance circumstances from the viewpoint of the community generally, including, importantly, its effect on the local (if any) communities. On the evidence in this case I am satisfied that there is no real chance that the disturbance that will result to the lands the subject of the proposed tenements from the exercise of the rights granted in each case will involve major disturbance or create rights whose existence is likely to involve major disturbance to the land concerned within the meaning of s 237(c).
DETERMINATION
The determination of the Tribunal is that the grants of exploration licences 08/1130, 08/1131 and 08/1132 are each acts attracting the expedited procedure.
E M Franklyn QC
Deputy President
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