Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Comet Resources Ltd
[2005] NNTTA 38
•31 May 2005
NATIONAL NATIVE TITLE TRIBUNAL
Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Comet Resources Ltd, [2005] NNTTA 38 (31 May 2005)
Application No: WO04/252
IN THE MATTER of the Native Title Act 1993 (Cwlth)
- and -
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)
- and -
The State of Western Australia (Government party)
- and -
Comet Resources Ltd (Grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 31 May 2005
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – likelihood of act directly interfering with the carrying on of community or social activities – likelihood of act interfering with sites of particular significance – likelihood of act to involve major disturbance – act which attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth), ss 148(b), 190(1), (3), 237(a), (b), (c), 29, 31, 141, 109
Mining Act1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17 & 18
Cases:Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner
Little v State of Western Australia [2001] FCA 1706 (6 December 2001) John Sosso
Rosas v Northern Territory (2002) 169 FLR 330 (25 June 2002) John Sosso
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals ltd/Ripplesea Pty Ltd/Western Australia [2002] NNTTA 31 (7 May 2004) Dan O’Dea
Lapthorne & Ors (Thudgari People)/Western
Australia/Global Stone Group Inc [2002] NNTTA 231 (13 November 2002), Hon E M Franklyn
Walley v Western Australia (2002) 169 FCR 437 at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62])
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC
Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, [2002] NNTTA 24 (8 March 2002), Hon C J Sumner
Dann v Western Australia (1997) 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
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
Representative of the
Grantee party: Mr Tony Cooper, Comet Resources Ltd
REASONS FOR DETERMINATION
Background
On 25 August 2004, 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 E28/1412 to Comet Resources Ltd (‘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 30 August 2004, 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 Native Title party’s Application for a Determination of Native Title (WC97/40) was registered by the Tribunal on 4 June 1997.
The Tribunal accepted the objection application in respect of the proposed licence on 24 September 2004 but it was noted that the objectors had not met the requirements of the acceptance test relevant to s 237(b) of the Act.
The proposed licence covers an area of 184.07km2, and is located 115km east of Kambalda in the Shire of Dundas. The licence is 100% within the area of the Native Title party’s claim.
Directions
On the 14 September 2004 the Tribunal gave Directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted in relation to the proposed licence. These Directions were in the usual form and require the lodgement by each party with the Tribunal of their respective contentions, evidence and other material to be relied on by them. The Directions provided for compliance by the State by 18 April 2005, the Native Title party by 25 April 2005 and the Grantee party by 2 May 2005.
The Directions also provided for a Listing Hearing to be held on 5 May 2005 for liberty to the parties to apply to vary the Directions drew 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. They also made provision for the preservation of confidentiality for documents of a confidential nature.
Negotiations between the Native Title party and Grantee ultimately failed with the parties indicating at a Status Conference convened by the Tribunal on 18 January 2005 that this matter should now proceed to inquiry. The Directions were amended on 20 January 2005 to bring compliance dates forward, the closing date for objections having passed on 25 December 2004. The new dates required compliance by the State by 8 March 2005, the Native Title party by 15 March 2005 and the Grantee party by 22 March 2005. The Listing Hearing was set down for 29 March 2005.
The State duly complied with the amended Directions on 10 March 2005. The Native Title party had not submitted contentions or evidence by the Listing Hearing convened by the Tribunal on 29 March 2005. The Native Title party did not appear at the listing hearing but the State and Grantee’s representative agreed to allow the Native Title party, until the convening of a further hearing before a Tribunal Member set for 8 April 2005, to comply. At the Listing Hearing on 29 March 2005 the Grantee party’s representative, Mr Tony Cooper, indicated that the Grantee would rely on the State’s submissions in this matter. Mr Cooper also stated that the Grantee had executed the Goldfields Regional Standard Heritage Agreement (RSHA) in favour of the Ngadju People (WC99/2). The proposed licence is also entirely within the area of the Ngadju claim area.
The outcome of the Listing Hearing of 29 March 2005 was communicated to the Native Title party representative shortly after it concluded. Late on the 29 March 2005 a statement of contentions was submitted by the Native Title party. This document was not accompanied by any supporting evidence (by way of affidavit for example).
Form of Inquiry
On 4 April 2005 I was appointed to constitute the Tribunal for the purposes of this inquiry. At that point the Native Title party had still not fully complied with the Tribunal’s Directions, having not lodged evidence in support of its statement of contentions. I therefore convened an adjourned Listing Hearing on 7 April 2005 to take submissions as to whether the inquiry should proceed on the material currently before me or whether a further opportunity should be afforded the Native Title party to become compliant with the amended Directions.
At the Listing Hearing on 7 April 2005, which the Grantee’s representative did not attend, the Native Title party representative, Ms Dorothy Tucker, confirmed that she had intended to lodge evidence by way of affidavit but had been unable to arrange for it to be properly sworn and witnessed. Ms Tucker also expressed the view that the inquiry should proceed ‘on country’, but made no substantive submissions to support this contention and ultimately conceded that the inquiry should proceed on the papers.
On the basis of Ms Tucker’s assurance that affidavit evidence would be supplied, I directed that the Native Title party submit additional materials to the Tribunal and other parties by 20 April 2005. I also adjourned the matter for a further Hearing on 27 April 2005.
On 13 April 2005, the Native Title party submitted additional material to the Tribunal, which was distributed to the other parties on the same day.
I convened the further adjourned Listing Hearing as planned on 27 April 2005, with all parties in attendance. At this hearing Mr Cooper confirmed that the Grantee did not intend to file any contentions or evidence as he would rely on those filed by the State and all parties were in agreement that the matter could now proceed to a determination on the papers.
Having now heard the parties on this issue, I am satisfied that this application can be adequately determined by considering the documents and other material lodged with, or provided to, the Tribunal.
Material Provided by the State
The evidence provided by the State pursuant to the Directions reveals the proposed licence to be situated on Unallocated Crown Land. There is no Aboriginal community in close proximity and there have been the following previous tenements applied for, or granted, over portions of the land the subject of the proposed licence:
Exploration Licence 28/414, granted on 23 January 1991 and surrendered on 17 March 1995;
Exploration Licence 28/480, granted on 28 October 1993 and surrendered on 24 November 1995;
Exploration Licence 28/499, granted on 11 February 1994 and surrendered on 30 November 1994;
Exploration Licence 28/531, granted on 13 April 1994 and surrendered on 9 August 1994;
Exploration Licence 28/540, granted on 19 July 1994 and surrendered on 19 May 1998;
Exploration Licence 28/630, application withdrawn prior to grant on 1 September 1995;
Exploration Licence 28/631, granted on 1 October 1996 and surrendered on 13 June 2003;
Exploration Licence 28/638, granted on 24 June 1996 and surrendered on 22 June 2001;
Exploration Licence 28/656, granted on 1 October 1996 and surrendered on 4 July 2003;
Exploration Licence 28/665, granted on 21 April 1997 and surrendered on 29 October 1998;
Exploration Licence 28/929, granted on 3 July 2000 and surrendered on 13 June 2003;
Exploration Licence 28/1034, granted on 27 April 2000 and surrendered on 11 July 2003;
Exploration Licence 28/1067 application withdrawn prior to grant on 15 March 2000;
Exploration Licence 28/1080, granted on 9 August 2001 and surrendered on 30 June 2004;
Exploration Licence 28/1132 application withdrawn prior to grant on 31 October 2003;
Mining Lease 28/249 application withdrawn prior to grant on 2 July 2004;
Mining Lease 28/250 application withdrawn prior to grant on 2 July 2004;
Mining Lease 28/251 application withdrawn prior to grant on 2 July 2004.
The topographical map provided by the State pursuant to the Directions shows the proposed licence to be abutted in all directions by current exploration licences (for example E28/1483; E28/1494; E28/1495; E28/1496 and E28/1530). In addition, these tenements are surrounded by either applications which were not granted or by expired exploration licences for distances in excess of 10km. The information provided by the State does not distinguish between applications which were not granted and exploration licences which have expired or have been surrendered, but the information provided does reveal a history of mineral exploration interest in the area of and surrounding the proposed licence.
According to the Department of Indigenous Affairs Site Register no Aboriginal sites are located wholly or partly within the boundaries of the proposed licence.
The State contends that the grant of the proposed licence will not give rise to any of the issues raised by ss 237(a), (b) or (c) of the Act. It refers to provisions of The Aboriginal Heritage Act 1972 (WA) (“the AHA”), ss 5, 17 and 18 in particular, to the standard conditions which will apply to the grant 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 State’s submission also refers to the fact that the Grantee has executed the Goldfields RSHA and served it on the Goldfields Land and Sea Council for execution by the Ngadju People, should this claim group accept its terms. A copy of a statutory declaration by Mr Cooper on behalf of the Grantee evidencing this is provided. The State contends that, as a consequence of this, and following Deputy President Sumner’s reasoning in Linda Champion on behalf of the Central West Goldfields People (WO04/41)/Western Australia/Vosperton Resources Pty Ltd, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Linda Champion’), the likelihood of interference to sites of particular significance (s 237(b) of the NTA) is lessened. In addition, the State proposes to add a further condition to the grant of the proposed licence:
‘The Licence, if so requested in writing by the Ngadju People, the applicants in Federal Court application no. WAD6221/98 WC99/2, such request being sent by pre-paid post to reach the Licensee’s address Post Office Box 7761, Cloisters Square, Perth WA 6850 not more than ninety days after the grant of the licence, shall within thirty days of the request execute in favour of the Ngadju People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’
Material provided by the Native Title party
The Directions required the Native Title party to provide, to the Tribunal and each of the other parties, 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 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 affidavit to be relied on by the Native Title party. They also required the lodgement and service of any statement of the evidence of any witness for the Native Title 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 29 March 2005, and a supporting affidavit on 13 April 2005. 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 evidence of the Native Title party is contained in an affidavit of Thelma Vera Tucker sworn on the 12th April 2005. I set out the contents of the affidavit, in full, below:
‘Affidavit of Thelma Vera Tucker
I, Thelma Vera Tucker, of Unit 39/19 Mayfair Street West Perth WA 6005, One of the applicants and member of the Narnoobinya Family Group. Do solemnly and sinerely affirm that this is my name and to the best of my knowledge the contents of this my affidavit are true.
1.The Narnoobinya Family Group (Native Title Party WC97/40) makes this submission regarding the potential effects of granting this Exploration Licence and the proposed exploration activities by Comet Resources on our native title rights and interests as described in Section 39 of the Native Title Act. The Country in response of which this tenement is intended to be issued is the country over which there is an existing claim for recognition of Native Title pursuant to the Native title Act 1993.
2.We are descendents of the original inhabitants of our grandmother Topsy Whitehead, Our claim stems from these connections and from the traditions that have been handed down to us. These include religious beliefs and practices, avoidances and knowledge of sacred sites.
3.Pursuant to traditional Aboriginal Law and Custom the country forms part of the cultural heritage from which Aboriginal people draw their identities and which is passed through generations of Aboriginal people with traditional connection to that country. The Family group ancestor’s and forbears who travelled and lived through and around these areas. There special places which have great spiritual importance and significance, and any disturbance to them would badly affect both the health and well-being of our traditional country and of our family members who are linked to the country. Other places are traditional living places of our old people and the locations of important events in our history that are essential to our continuing contact with traditional country and ancestors
4.Any ground disturbance f that country interferes with the Aboriginal heritage sites and our culture traditions. In the same way as Temple Mount in Israel is so filled with emotion and significance for Jews and Palestinians so too are our artefacts and traditions important. Consequently any disturbance of scared beliefs causes anguish to our people.
5.The Narnoobinya native title rights and interests, according to traditional law and customs mean that we are custodians of sites and must protect and care for the country, which includes this area. The proposed licence and activities also must avoid damage to flora and fauna, and landscape features that are basic to our enjoyment of our native title rights and interests and use of country and natural resources. Our traditional cultural responsibilities include managing the use of these lands and resources to insure the ongoing good health of the country for our people and descendents in the future.
6.We also need to make sure that the proposed activities do not compromise our freedom of access to continue to travel through and may conduct activities in our traditional country. Narnoobinya country is a fragile environment, and we do our best to make sure that our precious natural resources and water supplies are not destroyed. Tracks follow our ancestors’ traditional travelling routes and Dreaming Tracks between rock holes and other water sources. As Traditional owners, we have to make sure that proposals to introduce more heavy vehicles, people and activities along these tracks do not damage these sacred and environmentally crucial places, or threaten our cultural way of life that depends on the preservation of these places and our regular access to them.
7.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 subsection 237(a) if the Native Title Act applies to the decision to seek application of the expedited procedure.
8.The objector contends that the area of this tenement should be the subject of a heritage protection agreement and surveys be conducted with Aboriginal participants in order that the cultural landscape of the proposed tenement area which could be associated with traditional stories, sites of significance, old hunting grounds are not unnecessarily disturbed.
9.Ethnographic and archaeological surveys will determine whether places of special significance are threatened. We note that the department of Industry and resources are interested in such agreements and surveys being carried out.
10.given the acts allowable by the said license, we believe it could interfere and/or damage cultural heritage and our connections with that country, unless the Grantee party does a heritage protection survey to avoid any damage or interference to these sites of cultural significance. A heritage survey and a heritage agreement will resolve matters for us.
11.The Narnoobinya Family Group is not opposed to exploration activity but ask that the Grantee Party take care not to damage the land and the sites within it. Given that the license broadly covers what the Grantee can do to the land it is essential that the grantee undertake proper survey of this tenement. The Narnoobinya Family Group is willing to help the Grantee in a Heritage Protection Survey before the Grantee commences their operations.
12.Further, mineral exploration and possible, future mining activities on this exploration licence areas need to be conducted in such a manner so as to avoid damage or disturbance to places that have particular cultural and historical significance to the Narnoobinya Family Group, and which form an essential part of our cultural identity and ongoing traditions and practices.
13.Significant places should be protected under the Aboriginal Heritage Act. We don’t want mineral explorers damaging our cultural heritage places, or wasting time and money exploring at places that could not be mined in any case because of their cultural significance.
14.The proposed exploration activities would also involve increased 4WD and heavy vehicle traffic and making new tracks in previously undisturbed country that has only ever been travelled by foot or horseback. We are concerned to be closely involved in managing these activities so that they do not damage our traditional country and way of life.
15.We look forwarded to being contacted for further negotiations regarding his matter’
It is important in matters of this nature that a deponent to an affidavit establish their authority to speak in relation to the country on behalf of the Native Title party. The deponent does not depose to any basis of the authority she has to speak on behalf of the claimant group other than the fact that she has identified herself as an applicant in the proceedings. These matters have been considered by Justice RD Nicholson in Little v State of Western Australia [2001] FCA 1706 (6 December 2001) at 78 and 79 and by Member Sosso at Rosas v Northern Territory (2002) 169 FLR 330 [para 9 – 29] and by myself in Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia [2004] NNTTA31 (7 May 2004) at paras 20 and 21. The Tribunal, when conducting an expedited procedure inquiry of this nature, is required to carry out its functions in a fair, just, economical, informal and prompt way (s 109(1)). It is not bound by technicalities, legal forms or the rules of evidence (s 190(3)). In this case, as Mrs Tucker is an applicant on the claim, because of the extremely generalised nature of the content of the affidavit and because the material remains uncontested, I am prepared to accept it for the purposes of this inquiry.
Material provided by the Grantee party.
As noted at [10], the Grantee party submitted no contentions or evidence but is content to rely on those lodged by the State. As there is no evidence of the Grantee party’s intentions in relation to exploration, I have dealt with this matter on the basis that the Grantee party will exercise the rights available to it under the grant to the full extent permissible by law. I note that the Grantee has indicated that it has executed the RSHA, the relevance of which to this inquiry I will now consider.
Regional Standard Heritage Agreement (RSHA)
Since January 2004 it has been the Government party’s policy not to advertise exploration or prospecting tenements as attracting the expedited procedure unless the Grantee party has demonstrated its commitment to consultation with native title claimants over heritage issues. The Government party considers that this commitment is best demonstrated by a statutory declaration or affidavit that a RSHA has previously been entered into with, or has been signed by the Grantee party and forwarded to an affected registered native title claimant group. If a RSHA has not been negotiated or forwarded, then the Government party must be satisfied that an alternative heritage agreement exists.The Government party’s policy in relation to RSHAs, and Tribunal findings about their relevance in expedited procedure objection inquiries, are described in more detail in Linda Champion at [15]-[35].
The Tribunal has decided that the question of whether the Grantee party is prepared to enter into an RSHA is relevant to the question of the effectiveness of existing regulatory regimes which makes interference with sites of particular significance less likely to occur. The Tribunal, when making its predictive assessment as to the likelihood of interference to sites, may have regard to the Grantee’s attitude towards entering into an RSHA, particularly if the Grantee party is prepared to enter it into that actual objector, see Linda Champion at [para 32-24]. In this matter the Grantee party has executed an agreement with the Ngadju claimant group and the proposed condition upon the licence by the State requires the Grantee party to perform its obligations under that agreement in relation to the Ngadju People. For reasons that will become clear below, it is not currently necessary to consider the question of whether such an undertaking to enter into an RSHA with a non-objector, but not with the objector, would have any bearing on the process of predictive assessment that the Tribunal must undertake when evaluating the question before it pursuant to s 237(b) of the Act.
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 relevant contemporary activities nor particulars that are relevant to the issue of ‘likelihood’ (Lapthorne and Ors (Thudgari People /Western Australia/Global Stone [2002] NNTTA 231 (13 November 2002) Hon. E M Franklyn).
For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the Native Title party. Some very limited evidence in this regard is provided in paragraph 3 of Ms Tucker’s affidavit, which speaks of the claimants’ ancestors ‘who travelled and lived through and around these areas’. However, this assertion is of a general nature, with no evidence provided as to whether any present claim group members are also involved in these activities or greater degree of specificity as to what tangible activities this ‘travelling through and around areas’ might involve. Further, the grant of the proposed licence does not confer exclusive rights of access to the Grantee party and would only temporarily and periodically prevent access by the Native Title party.
With respect to the contention that the claimants spiritual connection with the land will be affected by exploration activities, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land and that failure to do so properly will lead to serious consequences for the claim group’s members. The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that what is now required is that any spiritual dimension of community activities must be rooted in, and arise from, those activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at para 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’
In this matter the Native Title party has failed to identify any specific community or social activities that could be interfered with by the grant of the proposed exploration licence. Consequently s 237(a) is not satisfied.
Neither the contentions of the Native Title party nor the affidavit of Mrs Tucker identify any location, feature or track within the proposed exploration licence area which could be reasonably characterised as a site of particular significance and therefore the Native Title party cannot succeed in establishing that s 237(b) is attracted. However, I wish to make some brief observations in relation to some of the matters raised in those documents and in the objection application itself (Form 4).
The Native Title party makes reference in its Form 4 application to the fact that artefacts scatters may occur within the area of the proposed licence. It suggests these may well not be recorded and require close examination in order to be identified. The Form 4 asserts that identification of these areas requires specialised expertise and that driving across it may well destroy an artefact scatter unless they are properly identified, recorded and protected. These matters are not addressed in the Native Title party’s contentions or affidavit. There is no evidence of the location of these areas or of their particular significance. I refer to the discussion by Deputy President Sumner in Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, [2002] NNTTA 24 (8 March 2002), Hon C J Sumner [at paras 50 and 51] where he referred to the affect of conditions then imposed on licences of this type drawing the Grantee’s attention to the AHA and the presumption of regularity providing a level of protection which would generally base a finding that s 237(b) was not attracted in the absence of evidence of sites of particular significance and the likelihood of their disturbance. The introduction of the RHSA and the amendment of the AHA have added weight to this approach. Section 237(b) can only be attracted when the site is identified and its particular significance described in a probative form.
In paragraph 4 of the affidavit of Mrs Tucker there is an assertion that ‘any ground disturbance of that country interferes with the Aboriginal heritage sites and our culture traditions in the same way as Temple Mount in Israel is so filled with emotion and significance for Jews and Palestinians so too are our artefacts and traditions important. Consequently any disturbance of scared beliefs causes anguish to our people.’ The difficulty with this assertion is that while it may be the case that the Temple Mount in Israel is of enormous importance, indeed particular significance, to both Jews and Palestinians, the Native Title party in these proceedings has failed to identify any such particular area within the proposed exploration licence or provided any evidence to suggest that the area as a whole could be regarded as having the same cultural and spiritual significance as the Temple Mount may have in its own context. The content of para 4 of the affidavit provides an instructive example of why a general assertion of the existence of sites or the profundity of their significance, no matter how eloquently or passionately expressed, cannot found a successful objection under s 237(b) of the Act unless it specifically identifies the site in question and the basis of its particular significance.
The meaning of ‘major disturbance’ in s 237(c) was considered in Dann v Western Australia (1997) 74 FCR 391. The question of 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. Despite the content of the Form 4, it does not appear to me from my reading of the Native Title party’s material that there is, in fact, any assertion that major disturbance will occur in the area as a result of the grant of the tenements. The general tenor of the contentions and affidavit suggest the grant of the tenements will involve some disturbance to the land but there is no attempt to address that issue in any concrete fashion or identify any such disturbance as major. Having regard to the conditions to be imposed on the exploration licence, the history of the grant of previous tenements in the area, I am satisfied that the grant of the exploration licences 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 28/1412, to Comet Resources Ltd, is an act which attracts the expedited procedure.
Daniel O’Dea
Member
31 May 2005
2
9
0