Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd.

Case •

[2003] NNTTA 126

•

24 December 2003

NATIONAL NATIVE TITLE TRIBUNAL

Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd., [2003] NNTTA 126 (24 December 2003)

Application No:        WO02/409 and WO03/188

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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Fraserx Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  24 December 2003

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 237(a), (b), (c), 29, 31, 141, 109

Mining Act 1978 (WA), ss 29(2), 63

Aboriginal Heritage Act 1972 (WA), ss 5, 17 & 18

Cases: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

Lapthorne & Ors (Thudgari People)/Western

Australia/Global Stone Group Inc, NNTT WO01/581, [2002] NNTTA 231 (13 November 2002), Hon E M Franklyn

Judy Hughes (Thalanyji)/Western Australia/Taipan Resources        N.L., NNTT WO01/618, [2003] NNTTA 69 (1 May 2003), Member Sosso

Dann v Western Australia (1997) 74 FCR 391

Smith v Western Australia (2001) 108 FCR 442

Ward v Western Australia (1996) 69 FCR 208

Representative of the

native title party:                 Mr Barrie Machin, Tamora Pty Ltd

Representative of the

Government party:             Mr Clyde Lannan, Department of Mineral & Petroleum Resources

Representative of the

grantee party:  Mr Chris Clegg, Statewide Tenement and Advisory Services Pty Ltd

REASONS FOR DETERMINATION

Background

  1. On 10 July 2002, 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 licences E28/1252 comprising 205.52km2; E28/1253 comprising 205.55km2 and E86/1259 comprising 205.25km2 (‘the 2002 exploration licences’) to Fraserx Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). On 29 January 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 E28/1245 comprising 204.96km2 (‘the 2003 exploration licence’) again to Fraserx Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). The 2002 and 2003 notices 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).

  2. On 23 July 2002, 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 2002 exploration licences attracted the expedited procedure.  On 27 February 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 2003 exploration licence attracted the expedited procedure.  The Native title party’s Application for Determination of Native Title (WC97/40) was registered by the Tribunal on 4 June 1997.  The land encompassed by the 2002 and 2003 exploration licences is situated within this claim area.

  3. The Tribunal accepted the objection application in respect of the 2002 exploration licences on 25 July 2002 and in respect of the 2003 exploration licence on 7 March 2003.

Directions

  1. On the 26 July 2002 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 2002 exploration licences.  On the 6 March 2003 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 2003 exploration licence.  The 2002 and 2003 Directions are in common form and require the lodgement by each party with the Tribunal and service on the other parties of their respective Contentions and other documents and material to be relied on by them respectively.  The 2002 Directions provided for compliance by the State by 3 March 2003, the native title party by 10 March 2003 and the grantee party by 17 March 2003.The 2003 Directions provided for compliance by the State by 6 August 2003, the native title party by 11 September 2003 and the grantee party by 18 September 2003.

  2. The Directions also provided for a Listing Hearing to be held on 27 March 2003 in respect of the 2002 objections and 25 September 2003 in respect of the 2003 objections, for liberty to the parties to apply to vary the Directions, drew attention to the provisions s 141 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.

  3. The 2002 Directions were amended on 18 March 2003 with the consent of the parties to allow negotiations to resolve this matter to continue, re-setting the compliance dates for April 2003.

  4. Negotiations between the native title party and grantee ultimately failed with the parties indicating that these matters would now proceed to inquiry.  The 2002 and 2003 Directions were further amended on 3 July 2003 to set identical compliance dates for both the 2002 and 2003 objections.  The new dates required compliance by the State by 6 August 2003, the Native title party by 13 August 2003 and the Grantee party by 20 August 2003.  The Listing Hearing was set down for 28 August 2003.

  5. The State duly complied with the amended Directions on 5 August 2003.  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 approved on 29 August 2003, with the grantee contentions to be submitted by 5 September 2003.

  6. At the Listing Hearing on 28 August 2003, the native title party’s representative, Mr Barrie Machin, submitted to the Tribunal that the issues raised by the Objection Applications 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.

Further Directions and Form of Inquiry

  1. On 22 September 2003 I was appointed by 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 6 October 2003 to take further submissions as to whether the inquiry should proceed ‘on country’ or on the papers.  At this hearing the native title party and their representative reiterated their view that the inquiry should proceed ‘on country’, but gave no detailed submissions to support this contention.  The grantee and State stated their view that these matters could adequately be dealt with on the papers.  The grantee representative again indicated their intention to rely on the State’s contentions. 

  2. At this hearing I indicated that the native title party would need to provide further detailed submissions to support a request for a hearing ‘on country’, including details of the types of evidence that would be lead, supporting affidavits and the proposed location for the hearing.   I indicated that I would not decide on this issue until the native title party had an opportunity to make such submissions.

  3. The native title party and grantee representative indicated at this hearing that there was some prospect for these matters to be resolved by agreement.  Since it is the Tribunal’s preference that matters be resolved by agreement where possible, I indicated my willingness to allow further time for this to occur.

  4. Accordingly, I issued further Directions on 6 October 2003 providing for a short adjournment to enable the native title party to submit additional materials and to give the parties a further opportunity to negotiate to resolve these matters. These Directions required that any additional materials were to be submitted to the Tribunal and other parties by 27 October 2003, provided for liberty to the parties to apply to vary the Directions, again drew attention to the provisions s 141 of the Act and that, as far as practicable, the evidence was to be provided in documentary form.

  5. At a further hearing on 3 November 2003, the parties confirmed that there was no prospect of these matters being resolved by agreement.  The grantee representative submitted that the inquiry process should now proceed. However, owing to illness, Ms Tucker had been unable to submit any further materials on behalf of the native title party to the Tribunal in accordance with my earlier Directions.  I therefore gave further Directions requiring that the native title party’s material be submitted to the Tribunal and other parties by 21 November 2003. 

  6. At this hearing the grantee representative indicated that the grantee might be willing to enter into a heritage agreement with the native title party based on the Goldfields Land and Sea Council Standard Heritage Agreement.  The native title party agreed to consider that agreement.

  7. On 27 November 2003, the native title party submitted additional material to the Tribunal, which was distributed to the other parties on the same day.  However, this material did not address the question of the ‘on country’ hearing.  I therefore convened a further hearing on 28 November 2003 to take any submission from the native title party on this point and any further submissions in response from the other parties.  During this hearing no further substantive submissions were made by the native title party in relation to the form of inquiry, nor was the acceptability of the Goldfields Land and Sea Council Standard Heritage Agreement raised.

  8. 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

  1. The State contends that the grant of the 2002 and 2003 exploration licences 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.

  2. The material provided by the State pursuant to the Directions reveals, inter alia, the 2002 exploration licences to be situated on freehold land vested in the Australian Track Corporation Ltd 1249/686 and Unallocated Crown Land.  There is no Aboriginal community within its vicinity and there to have been the following previous tenements applied for or granted over portions of the land the subject of the 2002 exploration licences:

  • Exploration Licence 28/651, granted on 1 July 1996 and  surrendered on 1August 1997;

  • Exploration Licence 28/652, granted on 1 July 1996 and surrendered on 1 August 1997;

  • Exploration Licence 28/728, application withdrawn prior to grant on 12 September 1997;

  • Exploration Licence 28/729, application withdrawn prior to grant on 12 September 1997;

  • Exploration Licence 28/733 application granted on 30 September 1997 and  surrendered on 23 March 2000;

  • Exploration Licence 28/816, application withdrawn prior to grant on 29 June 1998;

  • Exploration Licence 28/817, application withdrawn prior to grant on 29 June 1998;

  • Exploration Licence 28/849 application withdrawn prior to grant on 14 April 2002;

  • Exploration Licence 28/939, application refused  on 6 November 2001;

  • Exploration Licence 28/940, application refused  on 6 November 2001;

  • Exploration Licence 28/1230 application withdrawn prior to grant on 23 May 2002;

  • Exploration Licence 28/1231 application withdrawn prior to grant on 23 May 2002;

  • Exploration Licence 28/1194 application withdrawn prior to grant on 23 May 2002;

  • Exploration Licence 28/1195 application withdrawn prior to grant on 23 May 2002.

  1. The topographical map provided by the State pursuant to the Directions shows the 2002 exploration licences to be abutted in all directions by current exploration licences (for example E28/1292; E28/1257; E28/1258; E28/1266; E28/1260; E28/1261; E28/1210 and E28/1249).  In addition, these tenements are surrounded by either exploration applications which were not granted or by expired exploration licences for distances in excess of 10km.  Unfortunately 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 2002 exploration licences.

  2. The material provided by the State also reveals that the mapped boundaries of one Registered Aboriginal site, ID 3104 – “Zanthus”, partly overlap tenement E28/1252, one of the 2002 exploration licences. 

  3. The material provided by the State pursuant to the Directions reveals, inter alia, the 2003 exploration licence to be situated on Unallocated Crown Land, there to be no Aboriginal community within its vicinity and there to have been the following previous tenements applied for or granted over portions of the land the subject of the 2003 Exploration Licence:

  • Exploration Licence 28/498, granted on 11February 1994 and surrendered on 30 November 1994;

  • Exploration Licence 28/653, granted on 1 August 1996 and  surrendered on 30 June 2001;

  • Exploration Licence 28/679, application withdrawn prior to grant on 14 April 1997;

  • Exploration Licence 28/749, granted on 14 October 1997 and  surrendered on 29 October 1998;

  • Exploration Licence 28/787, application withdrawn prior to grant on 15 April 2002;

  • Exploration Licence 28/1193 application withdrawn prior to grant on 23 May 2002;

  • Exploration Licence 28/1201 application withdrawn prior to grant on 22 November 2002.

  1. The topographical map provided by the State pursuant to the Directions shows the 2003 exploration licences to be abutted by current exploration licences to the east (E28/1361 and E28/1362) and west (E28/1228).  This tenement is also surrounded by either exploration applications which were not granted or by expired exploration licences for distances in excess of 10km, again revealing a history of mineral exploration interest in the area of and surrounding the 2003 exploration licence.

  2. No Aboriginal sites are located within nor whose mapped boundaries intersect with the 2003 exploration licence.

Material Provided by the Native Title Party

  1. 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 2002 and 2003 exploration licences, 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 various exploration licences 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 party and details of where it is proposed that such evidence be heard. 

  2. Pursuant to the original and further Directions, the native title party provided a statement of contentions and further submissions, but no supporting affidavits.  The statement of contentions outlines the claimants’ belief that the land within their claim area and encompassed by the various exploration licences ‘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, such as the Registered Site ID 3104 (referred to in the contentions under the now obsolete Site Number W00145). The Statement of Contentions asserts that there may be unreported Aboriginal sites within the various exploration licences.  The contentions assert particular significance for the dirt road across E28/1252 to Zanthus which was constructed by their forbears.

  3. The further submissions provided by the native title party contend that the grant of the Exploration Licences will occasion disturbance to the land through the grantee exercising the rights conferred on them at grant.  The further submissions refer again to the possibility of unreported Aboriginal sites being present within the exploration licences and indicate the native title party’s belief that heritage research ought to be undertaken prior to any exploration activity within the tenements.

Material Provided by the Grantee Party.

  1. As noted at [10], the grantee party provided no contentions or evidence but indicated that it would 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.

Findings

  1. 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” (Lapthorne and Ors/The State of Western Australia/Global Stone. WO01/581 13 November 2002 Deputy President the Hon. E M Franklyn). 

  2. As described at [21], one Registered Aboriginal site is known to exist in the vicinity of, and possibly partly within, E28/1252. Unfortunately, very little information is available regarding this site within the relevant Site File maintained by the Department of Indigenous Affairs. The Site Verification Project undertaken by the Department of Indigenous Affairs during the late 1990s concluded that the locational information available was inadequate to accurately position this site; hence it is mapped on a 1km by 1km square grid. The Site Recording Card indicates that this site, an artefact scatter, was reported by an officer of the Commonwealth Scientific and Industrial Research Organisation during the 1970s. The Site Recording Card lists the report as pertaining to ‘several sites’ without providing any further information. This suggests that a number of Aboriginal sites were discovered at the time that were not subject to a separate report. In addition, the map supplied by the State identifies two places within E28/1253 that may represent Aboriginal sites; Yarrara and Ben Ber Native Wells. Neither are registered sites under the AHA but it is accepted that the Register is not a complete record of all Aboriginal sites in Western Australia. The protective provisions of that Act apply whether or not a site is on the Register. The native title party provided no evidence in relation to these sites or possible sites other than the outdated reference to the Zanthus site in E28/1252.

  1. At paragraph 7 of the native title party’s contention, there is an assertion that “this claim area is of particular significance to us because the dirt road through E28/1252 to Zanthus was constructed by the Narnoobinya Family Group ancestorsforbears (sic), they travelled and lived through and around these areas.”  It is not clear that a dirt road constructed by the forbears of the Native Title Group could be regarded as an Aboriginal area or site, let alone one of particular significance in accordance with their traditions.  In any event, there is no evidence before the Tribunal as to the particular significance of this road or indeed how it would be interfered with by its use by the grantee party during the course of the activities it is entitled to undertake.  It is a condition of the grant that the Grantee rehabilitate any disturbance to land, including access tracks, to the satisfaction of the District Mining Engineer.

  2. In relation to the registered Aboriginal site ID3104-“Zanthus” which partly overlaps E28/1252, I note that the native title party has not provided any additional information in relation to this site or indication of its significance to them.  The information contained in the registration is inadequate to determine whether it is a site of particular significance for the purposes of s 237(b).  The native title party makes reference in its Form 4 application to the fact that other artefacts scatters may occur within the area of the 2002 and 2003 exploration tenements.  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.  This may be the case in this area, as well as most other areas within the Goldfields region, however in the absence of any evidence of their location or significance, and in the light of what Deputy President Sumner has said in Walley and Boddington at paragraphs 50 and 51, such assertions are clearly insufficient to satisfy s 237(b). I refer particularly to the comments of Deputy President Sumner in relation to the presumption of regularity in which he partly based his conclusion on the fact that a defence under the AHA was not available to a person who interfered with the site, given the endorsement on the licence and the guidelines would have put them on notice of their obligation under the AHA. Where an area is rich in sites, or the whole area is of particular significance, the Tribunal has found that the AHA is inadequate to provide the necessary protection without negotiations with the native title party and probably a Heritage Protection Agreement (See Walley at 51).  However, in this case there is no evidence to suggest the area is rich in sites or that they, individually, or the area as a whole, is of particular significance to the native title party.  Rather the area contains one registered site about which imprecise details are held on the Register and there is generalised suggestions of the possibility of the existence of other sites but no evidence as to location or significance. 

  3. The grantee party has provided no evidence of what it intends to do to protect the areas or sites identified by the evidence, such as they are, apart from statements made by their representative that they would be prepared to adopt the Goldfields Land and Sea Council standard Heritage Agreement.  I accept that the grantee party will obey the law and I observe that it may well be that it would be preferable if the parties could agree to adopt some from of heritage survey arrangement before exploration activity is conducted, nevertheless, there is simply insufficient evidence to satisfy the Tribunal that s 237(b) has been attracted.

  4. 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. There is a general suggestion in the flavour of the Statement that the grant of the tenements will involve some disturbance to the land but no attempt to address that issue in any concrete fashion or identify such disturbance as major. Having regard to the conditions to be imposed on the exploration licences, 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.

  5. Before concluding, I wish to make some short observations about the state of the evidence in this matter.  The Form 4, the document required to be lodged in the making of an objection to the application of the expedited procedure requires, inter alia, the inclusion of a statement of the basis of the objection with reference to the three limbs of s 237.  It also requires an outline of the nature of the evidence which will be adduced by the objector in support of the objection.  In this case the Form 4 in both the objection to the 2002 exploration licences and the 2003 exploration licence stated that they may adduce historical, anthropological, archaeological, genealogical, linguistic and environmental evidence in both affidavit and oral form.  It was suggested that oral evidence be given on country.  None of the evidence was produced, nor were any reasons for the hearing of evidence on country, despite the native title party being afforded ample opportunity to do so.  The Tribunal is required by s 109 of the NTA to carry out its functions in a fair, just, economical, informal and prompt way, it may take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders and it is not bound by the rules of evidence.  I agree with and adopt the observations made by Member Sosso in Judy Hughes (Thalanyji)/Western Australia/Taipan Resources N.L. [2003] NNTTA 69 (1 May 2003) (paras 13-18) in relation to the approach to a be adopted by the Tribunal in dealing with evidence before it. The point needs to be made that s 237 requires the making of a predictive assessment of what is likely to occur if the act is allowed to be done (French J in Smith v Western Australia 2001 108 FCR 442 at 23). There is no onus of proof but the Tribunal will take a commonsense approach to the receipt of evidence (Carr J in Ward v Western Australia (1996) 69 FCR 208 at 215-218). If the facts of a particular issue are peculiarly within the knowledge of one party and that evidence is not tendered by that party or does not come to light as a result of the Tribunal’s own inquiry or from some other source, the Tribunal may draw the inference that such facts do not exist or would not support the proposition contended for. In short, if a native title party produces no cogent evidence of the matters referred to in s 237, irrespective of the effect of s 109, the native title party cannot succeed in the objection.

Determination

  1. The determination of the Tribunal is that the grant of Exploration Licences 28/1245, 28/1252, 28/1253 and 28/1259 to Fraserx Pty  Ltd are acts which attract the expedited procedure.

Daniel O’Dea

Member
24 December 2003

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