Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Charles George Chitty
[2004] NNTTA 92
•1 October 2004
NATIONAL NATIVE TITLE TRIBUNAL
Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Charles George Chitty, [2004] NNTTA 92 (1 October 2004)
Application No: WO03/577
IN THE MATTER of the Native Title Act 1993 (Cwlth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Dorothy Tucker on behalf of Narnoobinya Family Group (WC97/40) (Native Title party)
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The State of Western Australia (Government party)
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Charles George Chitty (Grantee party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:Daniel O’Dea, Member
Place:Perth
Date:1 October 2004
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – evidence insufficient to support objection – act attracts the expedited procedure.
Legislation: Native Title Act 1993 (Cth), ss 237(a), (b), (c), 29 & 148(b)
Mining Act1978 (WA), ss 29(2), 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17 & 18
Cases:Charlie Lapthorne and Ors on behalf of the Thudgari People/The State of Western Australia/Global Stone Group Inc., NNTTA 231 (13 November 2002)
Dann v Western Australia 74 FCR 391
Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd., [2003] NNTTA 126 (24 December 2003)
Representative of the
Native Title party: Ms Dorothy Tucker, Narnoobinya Family Group
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
Representative of the
Grantee party: Mr Clive Miller, Tenement Administration Services Pty Ltd
REASONS FOR DETERMINATION
Background
On 21 May 2003, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant exploration licence E28/1327 (‘the exploration licence) to Mr Charles George Chitty (‘the Grantee party’) under the Mining Act 1978 (WA). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 31 July 2003, Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group (‘the Native Title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure. The Tribunal accepted the objection application in respect of the exploration licence on 19 August 2003.
Relevant Facts
The Native Title party’s Application for Determination of Native Title (WC97/40) was registered by the Tribunal on 4 June 1997 and the area, location, and percentage to which the exploration licence is overlapped by the registered native title claim is as follows:
- E28/1327 – 1176.33ha, 39 km west of Rawlinna, 79.1% overlap
The Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiry in relation to the expedited procedure objection application on 19 August 2003. The Direction in respect of the Native Title party was as follows:
‘(3)On or before 4 February 2004 the Native Title party shall provide the following to the Tribunal and each other party:
(a)a statement of contentions.
Statement of contentions to include:
· a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
· a statement of the community or social activities of the Native Title party that it is contended is likely to be interfered with directly by the grant of the tenement.
(b)a copy of each document relevant to the Inquiry (including any affidavit to be relied on).
Documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “Confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal; and
(c)a statement of the evidence to be given by any witness for the Native Title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.’
At the request of the parties, a variation of the Directions was made on 27 February 2004 to allow further time for the parties to negotiate that extended the time for Native Title party compliance to 26 March 2004. By consent, further variations where made to extend the time for Native Title party compliance until the 19 April 2004 then 19 May 2004.
The Directions drew specific attention to the provisions s 148 of the Act (which renders the objection subject to dismissal for failure by the objector within a reasonable time to comply) and that, as far as practicable, the parties were to provide evidence in documentary form
At Status and Adjourned Status Conferences convened on 3, 10 and 16 June 2004 the parties actively discussed a draft agreement that had been prepared by the grantee based on the Goldfields Standard Heritage Agreement. In the course of these discussions, a number of amendments were agreed at the request of the Native Title party and it seemed that agreement might be possible. Further hearings were adjourned to allow the Native Title party to obtain legal advice and consider its position.
Negotiations between the Native Title party and Grantee ultimately failed with the parties indicating at a Listing Hearing convened by the Tribunal on 8 July 2004 that these matters should now proceed to inquiry.
The State complied with the Directions on 4 January 2004. The Native Title party initially submitted contentions electronically on 13 August 2003, providing a signed copy by facsimile on 21 August 2003. On 28 August 2003 during the Listing Hearing, the Grantee representative requested further time to submit contentions owing to bereavement. As there was no objection from either the State or Native Title party, this request was agreed and the Grantee’s contentions were submitted on 5 September 2003.
At the Listing Hearing on 8 July 2004, the Native Title party’s representative, Ms Dorothy Tucker, submitted to the Tribunal that the issues raised by the Objection Application could not be adequately determined on the material before the Tribunal and in the absence of the parties. The Grantee party and State representatives contended that the matters were capable of determination on the papers.
Form of Inquiry
On 7 May 2004 I was appointed to constitute the Tribunal for the purposes of this inquiry. Given the submission made by the Native Title party’s representative, I conducted a preliminary hearing on 23 August 2004 to hear further submissions as to whether the inquiry should proceed ‘on country’ or on the papers. At this hearing the Native Title party withdrew the request for a hearing ‘on country’. All parties were, therefore, in agreement that the matter should be heard on the papers.
Having now heard the parties on this issue, I am satisfied that this application can be adequately determined by considering, without holding further hearings and in the absence of the parties, the documents and other material lodged with or provided to the Tribunal.
Material Provided by the State
The State contends that the grant of the exploration licence will not give rise to any of the issues raised by s 237(a), (b) and (c) of the Act. It refers to the provisions of s 29(2) of The Mining Act 1978 (WA) as they apply to freehold land, to the provisions of ss 5, 17 and 18 of The Aboriginal Heritage Act 1972 (WA) (“the AHA”), to the standard conditions which will apply to the grant as set out in the schedule attached to its contentions and to the conditions which are imposed on the grant by s 63 of the Mining Act. It states that the grant will include an endorsement drawing the grantee’s attention to the provisions of the AHA.
The material provided by the State pursuant to the Directions reveals, inter alia, the exploration licences to be situated on freehold land vested in the Australian Track Corporation Ltd 1249/686, two parcels of freehold land whose ownership is unspecified and Pastoral Leasehold Land (PL3114/1189 – Kanandah and PL3114/1224 – Rawlinna). There is no Aboriginal community within its vicinity and there appear to have been the following previous tenement or granted over portions of the land the subject of the 2002 exploration licences:
Exploration Licence 28/905 granted on 23 March 1999 and surrendered on 15 March 2000.
The topographical map provided by the State pursuant to the Directions shows the exploration licence to be abutted in all directions by current exploration and mining tenements (for example E28/820; E28/903; E28/905; E28/1390; E28/1414; M28/10; and M28/170). The information provided reveals a history of mineral exploration interest in the area of and surrounding the exploration licence.
The material provided by the State also reveals that no Aboriginal sites are located within or whose mapped boundaries intersect, with the exploration licence.
Material Provided by the Native Title Party
The Directions required the Native Title party to provide, inter alia, to the Tribunal and each of the other parties, by the specified date, 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 exploration licence, identifying in each case the particular significance of the site or area, a statement of the community or social activities of the Native Title party contended to be likely to be interfered with directly by the grant of the exploration licence and a copy of each document relevant to the enquiry, including any Affidavits to be relied on by the Native Title party. They also required the lodgement and service of any statement of evidence of any witness for the native party and details of where it is proposed that such evidence be heard.
Pursuant to the Directions, the Native Title party provided a statement of contentions on 26 April 2004, and a supporting affidavit on 2 June 2004. The statement of contentions outlines the claimants’ belief that the land within their claim area and encompassed by the exploration licence ‘forms part of the cultural heritage from which Aboriginal people draw their identities’. They contend that the grant of the exploration licence will interfere with the ‘capacity of present and future generations of Aboriginal people to interpret their traditions’. The Native Title party further contends that the Narnoobinya Family Group is impressed with a responsibility to care for and protect both the land and Aboriginal sites within their claim area. However, no places of particular significance within the exploration licence are identified; rather the Native Title party contends that a ‘heritage protection survey’ is required to ensure any such places within the tenement are ‘not unnecessarily disturbed’. The affidavit, sworn by Mrs Dorothy Anne English (Tucker), simply attests to the truth of the contentions.
Material Provided by the Grantee Party
The Grantee party provided a statement of contentions on 18 May 2004. In these contentions the Grantee sets out the events leading up to the breakdown in negotiations, from its perspective and emphasises that no objections were lodged by two other claimant groups whose determination applications also overlap the exploration licence. The Grantee concludes by adopting items 5 (a) to (c) of the State’s contentions and states that it has executed a Goldfields Standard Heritage Agreement in relation to the exploration licence.
Findings
The issue of the likelihood of interference “directly with the carrying on of community or social activities of the persons who are the holders of native title” (s 237 (a)) only arises for consideration if there is evidence of the carrying on of any such activities. The Directions required a statement of the community or social activities said to be likely to be interfered with. However, the Native Title party has not provided evidence of such relevant activities nor particulars that are relevant to the issue of “likelihood” (Charlie Lapthorne and Ors on behalf of the Thudgari People/The State of Western Australia/Global Stone Group Inc., NNTTA 231 (13 November 2002) Deputy President the Hon. E M Franklyn). Consequently s 237(a) cannot be attracted.
The Native Title party’s contentions make no reference to sites of particular significance or otherwise, but assert that it is of great importance that a heritage protection survey be conducted before the land is disturbed. The Grantee party at para [10] of its contentions states that it has executed the Goldfields Land and Sea Council Standard Heritage Agreement in accordance with which, presumably, it intends to operate to ensure the protection of places of heritage significance. This agreement requires a heritage protection survey before ground disturbing activities are undertaken. In any event, there is no evidence to satisfy the Tribunal that s 237(b) has been attracted.
The meaning of “major disturbance” in s 237(c) was considered in Dann v Western Australia 74 FCR 391. The question whether there is a likelihood of major disturbance is to be determined from the viewpoint of the general community but taking into account the concerns of the local community as disclosed by the evidence. The mere assertion by the Native Title party that exploration activities are likely to involve major disturbance is not enough. In this instance it does not appear to me from my reading of the Native Title party’s Statement of Contentions, nor from the content of its Form 4 that there is in fact an assertion that major disturbance will be occasioned in the area as a result of the grant of the tenements. I am satisfied that the grant of the exploration licenses is not likely to involve major disturbance or create rights of the nature referred to in s 237(c) of the Act.
Before concluding, I would reiterate again the comments I made in Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd., [2003] NNTTA 126 (24 December 2003). I also note that in this matter there was no request by any party for this objection application to be dismissed pursuant to s 148(b) of the NTA.
Determination
The determination of the Tribunal is that the grant of exploration licence E28/1327 is an act which attracts the expedited procedure.
Daniel O’Dea
Member
1 October 2004
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