Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group and Maureen Young on behalf of the Ngadju People/Western Australia/Zeedam Enterprises Pty Ltd
[2001] NNTTA 30
•4 May 2001
NATIONAL NATIVE TITLE TRIBUNAL
Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group and Maureen Young on behalf of the Ngadju People/Western Australia/Zeedam Enterprises Pty Ltd, [2001] NNTTA 30 (4 May 2001)
Application No: WO00/381 and WO00/400
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group (native title party) and
Maureen Young on behalf of the Ngadju People (native title party)
- and -
The State of Western Australia (Government party)
- and -
Zeedam Enterprises Pty Ltd (Grantee party)
REASONS FOR A DETERMINATION
Tribunal: Mr John Sosso (Member)
Place: Queensland
Date: 4 May 2001
Catchwords: Native Title – future act – proposed grant of exploration licences – expedited procedure objection application – insufficient evidence of relevant activities of native title claimants – no evidence of relevant sites – proposed grant found to attract the expedited procedure.
Legislation: Native Title Act 1993 (Cth) s 237, Aboriginal Heritage Act 1972 Mining Act 1978 (WA),
Application Nos: WO00/381, WO00/400
Background
[1] By notice dated 23 June, 2000 issued under section 29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the State”) advised its intention to grant to Zeedam Enterprises Pty Ltd (“the grantee”) an Exploration Licence (No28/1080) over a area of land of some 11.67 square kilometres located 116 km north easterly of Norseman in the Shire of Dundas (Lat 31° Long 122°16’). The notice included the statement that the State considered that the grant attracted the expedited procedure under the Act. The notice also explained that the grant of an exploration licence authorises an applicant to explore for minerals for a term of 5 years. The notification date was 28 June, 2000.
From the State’s Statement of Contentions, it would appear that the grantee applied on or about 19 November, 1999 for the grant of exploration licence 28/1080 pursuant to section 58 of the Mining Act 1978 (WA). The land over which the proposed tenement is expressed to operate (“the land”) is comprised of unallocated Crown land.
[2] On 19 July, 2000 Dorothy and Thelma Tucker, registered native title claimants, on behalf of the Narnoobinya Family Group (WC 97/40) lodged objection to the statement in the section 29 notice that grant attracted the expedited procedure.
Paragraph 7 of Form 4 (made pursuant to the Native Title (Tribunal) Regulations 1993) requires objectors to include a statement why the proposed act is not an act attracting the expedited procedure, including a statement of the likely impact of the act on the community or social activities of native title holders, areas or sites of particular significance and any land or waters concerned.
The objectors adduced the following reasons:
“The proposed act is not an act attracting the expedited procedure because there are matters of Aboriginal heritage, Aboriginal rights, culture and traditions, ceremonial life, principles of access and the natural environment of the land and waters and land usage that have not been settled, all the native title holders must be satisfied that such matters as the environment and significant Aboriginal sites are not damaged. If these matters are not dealt with in a satisfactory manner in keeping with the NTA and the RDA then the customs and community life of the native title claimants will suffer accordingly.”
Paragraph 8 of Form 4 further requires objectors to outline the type of evidence that will be produced to the Tribunal.
The objectors outlined the following:
“The type of evidence that the applicant will produce to the Native Title Tribunal to support the objection is: Historical, anthropological and genealogical verbal evidence provided by the Native Title claimants and by expert witnesses like the anthropologist and legal representative.”
This objection is referred to hereafter as Application WO00/381.
[3] On 24 October, 2000 Maureen Young, a registered native title claimant, on behalf of the Ngadju People (WC99/2) lodged a Form 4 expedited procedure objection.
The statement in paragraph 7 of Form 4 was as follows:
“The objector believes that the proposed grant is not an act attracting the expedited procedure because it:-
- will directly interfere with the carrying on of the community and social activities of the native title claimants;
- will interfere with areas or sites of particular significance to the native title claimants;
- will involve major disturbance to the land and waters concerned.”
The outline of evidence required by paragraph 8 was answered in the following manner:
“The claimants can give oral evidence of the cultural significance of the area, and this can be supported by the oral evidence of anthropologists and by other documentary evidence. The claimants can give oral evidence of their personal activities and knowledge in respect of the area and communal histories; they are also able to give evidence of having exercised native title rights and interests on claim land and of the impact of the proposed act on their community and social activities.”
This objection is referred to hereafter as Application WO00/400.
[4] I will deal at the conclusion of these reasons with my views on whether the objectors in Applications WO00/381 and 400 have complied with the requirements of Form 4. However, as neither the State or the grantee raised this issue, I do so for the benefit of future objectors, as the views expressed hereafter have no bearing on my determination in these matters.
On 17 November, 2000 the State and grantee were notified of the objections and a preliminary conference was held on 6 December, 2000. Directions were made, and the State complied by 30 January 2001.
The State lodged with the Tribunal and served on the other parties a statement of its contentions and a copy of the documents on which it relies (subject to the fact that it also relies on the State’s Outline of Legal Submissions concerning the interpretation of section 237 of the Act in WO99/511 and WO99/285, which documents were not circulated to the parties, but which, in any event, were not of relevance to this Inquiry).
These documents reveal there to be no Aboriginal communities on the area of the proposed tenement and no Aboriginal sites registered under the Aboriginal Heritage Act 1972.
The native title objectors lodged with the Tribunal and circulated to the parties a statement of contentions in each case, as well as supporting Affidavits.
The grantee lodged with the Tribunal a statement of contentions as well as copies of correspondence between itself and the objectors.
In the case of both WO00/381 and WO00/400 all of the parties were given the opportunity to provide supplementary evidence, and to indicate whether cross-examination of other parties’ evidence was proposed. In all cases the parties indicated that they supported a determination by the Tribunal “on the papers”.
Interpretation of section 237
[5] Before outlining the contentions of the State, grantee and native title parties, the legal principles underpinning this determination will be explained.
[6] Section 237 of the Act provides that a future act is one 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…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 the traditions, to the persons who are the holders…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.”
[7] Prior to the 1998 amendments of the Act (which reworded the section so that a future act now attracts the expedited procedure if it is “not likely to” as compared with the pre 1998 wording of “does not” have specified consequences) there was a period of time where there were different approaches to the interpretation of section 237 which was only settled by the Full Federal Court in Dann v Western Australia (1997) 74 FCR 391.
The meaning of the amended section 237 was considered by Deputy President Franklyn QC in Western Australia v Smith WO99/511, 23 June, 2000. Deputy President Franklyn’s decision was taken on appeal and this Tribunal now has a clear decision of the Federal Court on how the amended section 237 should be interpreted.
In Smith v Western Australia [2001] FCA 19 (unreported), French J, when dismissing the appeal, dealt, inter alia, with the question of likelihood in paragraphs (a), (b) and (c) in section 237. His Honour provided the following guidance (at paragraph 23):
“The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. The protection is not to be narrowly construed. The term “likely” in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such a judgment would potentially permit, without benefit of any negotiation, quite considerable risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction a forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep it within the realm of the expedited procedure. Consistently with the objects of the Act, the word “likely” requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.”
In short while section 237 now contemplates a predictive assessment, it is not one determined on the balance of probabilities, but rather a risk assessment by the Tribunal that will exclude from the expedited procedure future acts that would involve a real chance or risk of interference or major disturbance.
[8] His Honour also considered the wording of paragraph (a) of section 237: “not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title.”
French J was of the view that the criterion of direct interference in paragraph (a) was more functional than definitional. He said (at paragraph 26):
“it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.
In addition French J pointed out that the evaluation is contextual: “The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial.” (para 27)
[9] In applying section the criteria set out in section 237, apart from the above judicial pronouncements, I have also had regard to the following matters:
(a)no burden of proof or any evidential burden lies on any party when the Tribunal inquiries into the matters outlined in paragraphs (a) to (c) of section 237. The Tribunal should take a “commonsense” approach to evidence. See Carr J in Ward v Western Australia (1996) 69 FCR 208 at 217-218. Of course “where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its commonsense approach to the evidence” (at 217);
(b)the Federal Court is yet to determine whether the phrase “interfere directly with the carrying on of..community or social activities”, would include “all sorts of spiritual and like activities which might be directly interfered with without any physical interference” per Carr J in Ward v Western Australia (1996) 69 FCR 208 at 223. It is arguable that the wording of paragraph (a) both before and after the 1998 amendments is not so dissimilar that the line of judicial and Tribunal authority starting with Carr Js decision in Ward and the determination of the Hon C J Sumner in Smith v CRA Exploration Pty Ltd (1996) 133 FLR 251 would not still have relevance. However, Deputy President Franklyn was of the view in Smith v Western Australia that “section 237 is concerned with and limited to interference with the physical aspects of the carrying on of community and social activities of native title holders.” On appeal, French J did not have to deal with this issue, and it is still open. Suffice it to say, this issue was not raised in these matters and I was not presented with contentions by any of the parties. In these circumstances I express no opinion on the correct interpretation.
(c)the phrase “interfere with areas or sites of particular significance” in paragraph (b) of section 237 means areas or sites of special or more than ordinary significance to native title holders in accordance with their traditions. Carr J said in Cheinmora v Striker (1996) 142 ALR 21 at 34-35: “a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do. It would also involve a notional transposition of that word from being in front of ‘significance’ (as it appears in the subsection) to immediately after it. If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word ‘particular’ out..a relevant site is one that is of special or more than ordinary significance to native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the native title party claims are of particular significance, the tribunal will have to makes its own factual assessment of that matter.”
(d)The particularity of the significance of areas or sites must be “capable of identification” and the significance to the holders of native title must also be established on the evidence – Western Australia/Winnie McHenry WO98/125, Hon EM Franklyn QC, 28 July, 1999;
(e)It is permissible for the Tribunal “in inquiring and determining whether there was likely to be any interference with areas or sites of particular significance..the effectiveness of the Aboriginal Heritage Act, how it was administered in practice, the likelihood that the grantee parties would have to consult with the native title parties in order to comply with the Aboriginal Heritage Act and in those circumstances the likelihood that they would do so. All of these matters were part of a fact finding exercise to determine whether there was likely to be any interference with areas or sites of particular significance.” Per Carr J Ward v Western Australia (1996) 69 FCR 208 at 230;
(f)Paragraph (c) (major disturbance) “requires the Tribunal to make a value judgment about whether the activities permitted by the exploration licence make it possible for there to be major disturbance to land or waters concerned. The major disturbance is to be judged from the point of view of the general community but in doing so the Tribunal is obliged to have regard to evidence relating to the customs, traditions and culture of the native title party.” Jack Dann/Western Australia/GPA Distributors Pty Ltd WO95/19 (No 2), Hon CJ Sumner, 10 June, 1997 at p17. Accordingly while disturbance is to assessed by taking into account views of all members of the community, with no one section being determinative, nevertheless “its effect on local people is particularly important” per Wilcox J in Dann v Western Australia (1997) 74 FCR 391 at 395;
(g)In assessing whether major disturbance will be caused “it is open to the Tribunal to take account of any remedial action proposed to be undertaken by the grantee in respect of any disturbance involved in the exercise of the rights created by the future act” per Deputy President Franklyn Western Australia/Derrick Smith & ors (Gnaala Karla Boodja People)/South Coast Metals Pty Ltd, WO99/511, 23 June, 2000 at p.31.
Section 237(a) Interference with community or social activities
[10] The State contended that the granting of the proposed tenement would not be likely to interfere directly with the carrying on of the community or social activities of the objectors in either WO00/381 or WO00/400 for the following reasons:
(a)there are no Aboriginal communities situated on, or in the vicinity of, the proposed tenement; and
(b)section 63 of the Mining Act 1978 deems every tenement of the type proposed to be granted subject to the holder fulfilling conditions outlined in that section (reporting discoveries of minerals, making safe any holes, pits, trenches etc, and preventing damage to property and livestock).
WA Statement of Contentions WO00/381 and WO00/400 dated 29 January, 2001 at para. 4
[11] The grantee, in its Statement of Contentions dated 19 April, 2001 contended, inter alia, that “1. The application area is relatively small comprising 4 graticular blocks. The exploration programme proposed is passive and involves little if any ground disturbance.”
[12] Objectors in WO00/381 Dorothy and Thelma Tucker, in a Statement of Contentions dated 13 April, 2001, set out the following issues:
“1. Country in respect of which the tenement is intended to be issued is the country over which there is an existing claim for recognition of the Native Title pursuant to the Native Title Act 1993.
2. Pursuant to traditional Aboriginal Law and Custom the country forms part of the cultural landscape from which Aboriginal People draw their identities and intersects with story lines and dreaming tracks, knowledge of which is passed through generations of Aboriginal People which traditional connection to that country.
3. Any potential ground disturbance of that country may interfere with the dreaming stories of that cultural landscape thus interfering with the capacity of present and future generations of Aboriginal people to interpret those stories. This militates against those persons being able to freely determine the social and cultural arrangements from which they draw their identity and thus find meaning in their lives.
4. It is the objector’s contention that the impact upon Native Title by the proposed activity allowed pursuant to the tenement is such that it is a matter that should be negotiated with registered claimants for Native Title. The objector thus contends that section 237(a) of the Native Title Act applies to the decision to seek application of the expedited procedure.
5. The objector contends that the tenement area should be the subject of a heritage protection survey conducted with Aboriginal participants in order that the cultural landscape associated with traditional stories, any sites of significance and the hunting grounds are not unnecessarily disturbed.”
The Statement of Contentions was supplemented by an Affidavit of Thelma Tucker dated 17 April, 2001
[13] The Statement of Contentions of the objectors in WO00/400 was executed by Kathy Burns, solicitor for the Ngadju People, and dated 5 April, 2001. Save for some very minor differences it is worded in exactly the same manner as the Statement of Contentions set out in paragraph 12 above. This Statement of Contentions was supplemented by an Affidavit of Johnny Graham (one of the claimants in WC95/17) dated 4 April, 2001.
[14] Thelma Tucker deposed as follows:
“6. Narnoobinya country, including the area, is of particular significance to me because the Narnoobinya People have lived and traveled through there for generations.
7. People who come on to the land without consulting the people who speak for that country may interfere with areas that are of great importance to the Narnoobinya people. Given the acts allowable by the said licence, I believe it could interfere with both the physical and spiritual connections we have with our country. The Narnoobinya People seek to avoid any damage or interference to these sites of spiritual and cultural significance.”
[15] Johnny Graham deposed as follows:
“6. Ngadju country, including this area, is of particular significance to me because the Ngadju people have lived and traveled through there for generations.
7. The Ngadju people have, and continue to utilise the area for hunting and food gathering. There are dreaming sites and tracks on the subject land. There is also a major camping and hunting ground, a cooking ground and some artefact scatter. There are also significant water sources in the country including the subject land and we are concerned that any damage to the area may be detrimental to the Ngadju people, both physically and spiritually.”
Paragraph 9 of Mr Graham’s affidavit was materially the same as paragraph 7 of Dorothy Tucker’s outlined above.
[16] Following the judgment of French J in Smith v Western Australia [2001] FCA 19 the issue to be determined by the Tribunal is whether the evidence adduced is such that there is a real or not remote chance or possibility that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of the holders of native title.
[17] Evidence adduced by objectors in WO00/381 and WO00/400 does not contradict the State’s contention that there are no Aboriginal communities situated on, or in the vicinity of, the proposed tenement.
[18] Further the evidence adduced by the objectors was brief and general. While Mr Graham did depose in paragraph 9 of his Affidavit that the area was used for hunting and food gathering, and he did refer to camping, cooking and hunting grounds, no evidence was given of specific sites.
[19] No evidence was given of the frequency of the hunting and food gathering or the particular importance of the area of the proposed tenement in this regard. Whilst objectors are not required to adduce voluminous material they must address the requirements of section 237 by producing material which is specific and relevant.
[20] As I mentioned earlier, I have not found it necessary to determine whether the interference encapsulated within paragraph (a) encompasses more than the physical aspects of the carrying on of community and social activities of native title holders. This is so as the assertion made about the non-physical aspects was generic and not supported by any specific evidence.
[21] I also note, although this is not a matter I have given great weight to, the grantee’s statement that the proposed activity will be passive and will involve little, if any, ground disturbance. In short there are no factual circumstances to give rise to any likelihood of relevant interference within the meaning of section 237(a).
Section 237(b) Interference with areas or sites of significance
[22] The State contended that the granting of the proposed tenement would not be likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the objectors in both WO00/381 and WO00/400 for the following reasons:
(a)the Aboriginal Heritage Act 1972 applies to the land, and provides protection for Aboriginal areas or sites as defined by section 5, of particular significance on the land;
(b)section 18 of the Aboriginal Heritage Act provides that the grantee party must have the consent of the Minister for Aboriginal Affairs using the land for any purpose which would result in a breach of section 17. Section 17 makes it an offence, inter alia, to excavate, destroy or damage or conceal or in any way alter any Aboriginal site or any object on or under an Aboriginal site; and
(c)the grant of the proposed tenement will include an endorsement that the grantee party’s attention be drawn to the provisions of the Aboriginal Heritage Act.
[23] The grantee in its Statement of Contentions pointed out that the Department of Aboriginal Affairs Site Register “shows no sites listed for the application area” (para 2). The grantee also claimed that there was a continuous history of exploration over the subject area and surrounds over the previous 16 years, and that this exploration had not impacted adversely on traditional Aboriginal activities. Finally the grantee said that it would comply with all requirements of both the Aboriginal Heritage Act and Mining Act that provide protection for Aboriginal areas and sites.
[24] Thelma Tucker in paragraph 5 of her Affidavit deposed as follows: “ While all the country for which the Narnoobinya people have native title rights and interest must be cared for, of particular importance are those areas in that it contains sacred and other sites of significance. These are associated with and other aspects of Aboriginal customary law.”
[25] Johnny Graham at paragraph 8 deposed as follows: “The whole area is of significance in that it contains sacred and other sites of significance. These are associated with ceremonies and other aspects of Aboriginal customary law.”
[26] As was pointed out in paragraph 9 (c) the Federal Court has interpreted section 237(b) to require evidence of interference with areas or sites of special or more than ordinary significance to native title holders. However, in these matters the evidence of the objectors is inadequate to lead to a finding of the existence of areas or sites of particular significance. Consequently the issue of likelihood or otherwise of interference with any such area or site does not arise.
[27] The assertions of the objectors are too brief, wide and general to carry sufficient weight that would lead to a conclusion that section 237(b) applies. I also note that one of the conditions imposed on the grantee of the proposed tenement will be drawing the grantee’s attention to the provisions of the Aboriginal Heritage Act. Consequently should a site within the meaning of that Act be discovered on the area of the proposed tenement, not only will its provisions apply, but also the operation of the Act will have been drawn to the attention of the licensee as a condition of the grant of the licence.
Section 237(c) major disturbance to land or waters
[28] The State contended that the grant of the proposed tenement would not be likely to involve major disturbance to the land or create rights whose exercise would be likely to create major disturbance as the grantee “acting lawfully in the exercise of the rights given to it by the proposed tenement, will not cause a physical disturbance to the land which constitutes a major disturbance by the standards of the whole Australian community.”
[29] Importantly Part 2 of the Second Schedule which sets out conditions to be imposed on the proposed tenement (and which is attached to the State’s Statement of Contentions) outlines the following:
“1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.
2. All costeans and other disturbances to the surface of the land made as a result of exploration, including drilling pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the District Mining Engineer. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the District Mining Engineer.
3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4. Unless the written approval of the District Mining Engineer is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.”
[30] The grantee in its Statement of Contentions stated that the exploration program proposed would be passive, involving little (if any) ground disturbance, and would comprise the following:
study of previous exploration by others in the region and over the licence area;
GIS compilation of all available data;
study and interpretation of all available remote data (e.g. Landstat and satellite images, aeromagnetic data, aerial photographs etc);
broad spaced soil sampling over identified target areas, and, where warranted, follow up detailed soil sampling or drilling.
See paragraph 1 of Grantee’s Statement of Contentions dated 11 April, 2001.
[31] The objectors in both WO00/381 and WO00/400 indicated that they were not opposed to exploration activity but asked that the grantee take care not to damage the land and sites. Both objectors also asked that the grantee undertake a proper survey of the proposed tenement, and both objectors indicated their preparedness to assist the grantee in conducting a heritage protection survey before the commencement of exploration operations.
[32] In Dann v Western Australia (1997) 74 FCR 391 Wilcox J made the following observations (at 395):
“The Court was informed in the course of argument that some Tribunal members had held that an envisaged disturbance to land or waters should be regarded as a ‘major disturbance’ if it was so categorised by one of the parties. If that view had been taken, it is clearly wrong. It is for the Tribunal to determine whether a particular future act will involve a disturbance to land or waters and, if so, whether the disturbance answers the description of being a ‘major disturbance’. Submissions from the parties may assist the Tribunal in reaching conclusions on these matters, but assertion is not enough; the Tribunal must decide…..
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.”
[33] From the material submitted to the Tribunal it is open for me to conclude that the exercise of the rights conferred by the exploration licence could result in some disturbance to the land the subject of the licence. However, there is no evidence that the activities of the grantee would be likely to result in any major disturbance.
[34] The manner in which the Federal Court and the Tribunal has interpreted paragraph 237(c) is set out above. Unfortunately the contentions of the objectors do not directly deal with this issue, but are focussed more on paragraphs (a) and (b). Certainly there is no suggestion by the objectors that the exploration activities envisaged by the grantees will result in any major disturbance. Indeed, as was highlighted in the quotations from the Affidavits of Thelma Tucker and Johnny Graham, the native title holders are not opposed to exploration activity, but are concerned that it be conducted in a culturally and environmentally sensitive fashion.
[35] Having regard to the material before me, and applying the interpretation of “major disturbance’ given by the Full Federal Court in Dann v Western Australia, I am satisfied that the exercise of the rights granted by the exploration licence will not be likely to involve major disturbance to land or waters within the meaning of section 237(c).
Compliance with requirements of Form 4
[36] I outlined in paragraphs 2 and 3 how the objectors in these matters had purported to comply with the requirements of Form 4 of Schedule 1 of the Native Title (Tribunal) Regulations 1993. The issue of compliance with Form 4 was not raised by any party, however, it recently was the subject of a Tribunal determination following objections made by the Northern Territory in Roy Dixon on behalf of the Garawa and Gundanji People & Ors/Ashton Mining Limited/Northern Territory of Australia DO00/1-DO00/7, Deputy President Franklyn, 23 April 2001 (referred to hereafter as “Roy Dixon”).
[37] Without repeating Deputy President Franklyn’s summing up of the relevant statutory provisions, essentially an application objecting to a Government Party statement that the expedited procedure applies, must be in the prescribed form (s.76(a)) and must contain such information in relation to the matters sought to be determined as is prescribed (s.76(c)). Regulation 4 of the Native Title (Tribunal) Regulations 1993 provides as follows:
“4. (1) For paragraph 76(a) of the Act, an application must be in the following form:
(a) for an objection to inclusion in an expedited procedure application – Form 4;
(2) For paragraphs 76(c) and (d) of the Act, an application must contain the information and be accompanied by the documents as mentioned in the form for the application.”
[38] Form 4 contains nine paragraphs, the most pertinent of which for present purposes are paragraphs 7 and 8. The information required by these paragraphs is set out in paragraph 2 of these reasons.
[39] In the matter of Roy Dixon the Northern Territory contended that the various objections should have been dismissed as not complying with the requirements of paragraphs 7 and 8 of Form 4.
[40] Each of the objectors in response to the requirements of paragraph 7 set out their respective claimed native title rights and interests, and then stated: “Accordingly the objector believes that the proposed act is not an act attracting the expedited procedure as one or more of the paragraphs of s237 of the Act are not satisfied; viz”. In each case the objectors then set out paragraphs (a), (b) and (c) of section 237. The Northern Territory contended that this amounted to no more than a generic statement of the likely impact of the future act wholly in the abstract and minus any particulars which addressed the likely impact of the future act.
[41] In response to paragraph 8 the objectors responded as follows: “the objector intends to produce evidence, including historical, social and anthropological evidence, to the National Native Title Tribunal.” The Northern Territory contended that the objectors had provided no outline of the evidence to be relied upon. Further it suggested that the information provided was universal and directed neither to the proposed future act nor the area of the proposed exploration licence.
[42] Overall the Northern Territory contended that the failures to comply with Form 4 were substantive breaches “which may frustrate genuine endeavours to resolve the objection by negotiating directly on particular alleged impacts as it gives no knowledge of the nature of the same and the Government party cannot, by condition or otherwise, make effective efforts to mitigate or avoid any particular impact” see Roy Dixon para 18 (p.15).
[43] The native title party contended that the provisions in Form 4 were procedural only, and that the inquiry conducted by the Tribunal was the proper place for evidence to be put and submissions made. Reliance was also placed on section 25C of the Acts Interpretation Act 1901 (Cwth), which provides: “unless the contrary intention appears, strict compliance with a prescribed form is not required and that substantial compliance is sufficient.”
[44] With respect to the requirements of paragraph 7 of Form 4, Deputy President Franklyn said (at para 18/pp15-16):
“In my opinion an applicant does not comply by merely reciting, as in the present case, the provisions of s237 which define what is an act which attracts the expedited procedure. That recitation may constitute the objectors belief why the proposed act is not one which attracts the expedited procedure but it gives no indication of its impact on the community or social activities of the native title holders or areas or sites of particular significance or any land or waters concerned. The reference in paragraph 7 to the community or social activities of the native title holders makes clear that the statements to be included must be specific to the objector’s activities and so requires a statement of activities and the likely impact on them of the future act. As to areas or sites of particular significance, in my opinion they are required to be identified in some way. To be of particular significance to the native title holders they are their significance must be known and so the impact on them should be capable of statement.”
[45] As to paragraph 8 Deputy President Franklyn said (at para 18/p.16):
“In my opinion it is not sufficient compliance as to provide a general list of generic types of evidence which would appear relevant to establishing a connection with the land but do not suggest relevance to the issues raised by s237. In my opinion the relevant outline of evidence to be produced requires a statement, in general terms, identifying whether the evidence relates to interference with the carrying on of the relevant and nominated community or social activities, interference with relevant areas or sites of particular significance to the holders of native title and/or likely disturbance to the land concerned and how that evidence will be given.”
[46] Deputy President Franklyn, while finding that there had not be compliance with the requirements of Form 4, nevertheless found they had been accepted by the Tribunal and therefore “lodged” within the meaning of section 32(3). He pointed out that while section 77 required acceptance of an application that complied with section 76, if there had not been compliance there was a discretion whether or not to accept it.
[47] It appears from the above that:
(a) substantial compliance with Form 4 (in accordance with s25C of the Acts Interpretation Act 1901) is permissible;
(b) there is not substantial compliance with paragraph 7 of Form 4 if there is no more than a generic statement of the likely impact of the future act wholly in the abstract and minus any particulars addressing the likely impact of the future act;
(c) there is not substantial compliance with paragraph 8 of Form 4 where the outline of the type of evidence is so universal that it does not address the proposed future act or the area of the proposed grant;
(d) there is a discretion that if a Form 4 application does not comply with the requirements of section 76 (i.e. paragraphs (a) and (c)), that the Tribunal may reject it;
(e) however, once the Tribunal has accepted a Form 4 application, and evidence produced at an inquiry leads to the conclusion that the act does not meet each of the criteria of section 237, then the Tribunal must find, as a matter of law, that the act does not attract the expedited procedure despite the defects in compliance with Form 4.
[48] No challenge was made by either the State or the grantee to the Form 4 applications of the objectors in this matter. I do note, however, that if there had been a challenge the manner in which paragraphs 7 and 8 were completed in both instances would have been a matter of concern.
[49] In addition, whether a challenge could be successfully made after lodgement of a Form 4 which has the defects outlined in the above determination is a moot point, and one which will, no doubt, arise in the future. For present purposes I simply refer to the interpretation of Deputy President Franklyn.
[50] Nonetheless, it is of importance to all persons having an interest in expedited procedure matters in Western Australia to have regard to Roy Dixon and to the findings of the Tribunal. It is especially important to have regard to the findings about whether formulaic incantations which in rote fashion paraphrase the provisions of the Act and do not address the requirements of Form 4, could result in objections not meeting the requirements of section 76 and not being accepted. It is in the interests of objectors that this matter be heeded to ensure that a Form 4 objection is not rejected because the requirements of the legislation have not been complied with.
Determination
It is the determination of the Tribunal that the grant of exploration licence E28/1080 is an act which attracts the expedited procedure.
J F Sosso
Member
0
5
0