Dorothy and Thelma Tucker/Western Australia/Gold Partners Ltd
[2001] NNTTA 80
•24 August 2001
NATIVE TITLE TRIBUNAL
Dorothy and Thelma Tucker/Western Australia/Gold Partners Ltd, [2001] NNTTA 80
(24 August 2001)
Application No: WO00/393
IN THE MATTER of the Native Title Act 1993 (Cwth)
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IN THE MATTER of an inquiry into an expedited procedure application
Dorothy and Thelma Tucker (native title party)
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The State of Western Australia (government party)
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Gold Partners Ltd (grantee party)
REASONS FOR A DETERMINATION
Tribunal: Mr John Sosso
Place: Brisbane
Date: 24 August 2001
Catchwords: Native Title – future act – proposed grant of the exploration licence – expedited procedure objection application – an act which attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) s237, Aboriginal Heritage Act 1972 (WA), Mining Act 1978 (WA).
Cases:Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Northern Territory v Lane (1995) 59 FCR 332
Ward v Western Australia (1996) 69 FCR 208
Cheinmora v Striker Resources NL (1996) 142 ALR 20
Dann v Western Australia (1997) 74 FCR 391
Smith v Western Australia [2001] FCA 19
Albert Little & Ors on behalf of the Badimia People/Western Australia/Wildbeach Corporation Pty Ltd, WO00/167, unreported, Deputy President Franklyn, 9 May 2001
Background
[1] On 6 September, 2000 (the notification day) the State of Western Australia (“the government party”) gave notice pursuant to section 29(2) of the Native Title Act 1993 (“the Act”) that it proposed to grant Exploration Licence 69/1572 to Gold Partners Ltd (“the grantee”), and that it considered that this act attracted the expedited procedure. The notice highlighted that the grant of an exploration licence would authorise the grantee to explore for minerals for a term of five years from the date of the grant.
[2] On 19 September, 2000 Dorothy and Thelma Tucker (“the native title party”) lodged an expedited procedure objection (Form 4 – Objection to Inclusion in an Expedited Procedure Application). Dorothy and Thelma Tucker are the named applicants on a registered native title application –WG6170/98 – WC97/40 (Thelma Vera Tucker and Dorothy Ann Tucker and Others on behalf of the Narnoobinya Family Group).
[3] The native title party’s statement of why the act should not attract the expedited procedure (paragraph 7 of Form 4) was in the following terms:
“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 RDA then the customs and community life of native title claimants will suffer accordingly.”
[4] The native title party’s outline of the type of evidence that would be produced (paragraph 8 of Form 4) was as follows:
“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 witness (sic) like the anthropologist and legal representative.”
[5] No material was put before me suggesting that the native title party had not complied with the requirements of Form 4. If acceptance of an expedited procedure objection application is by the staff of the Tribunal pursuant to a power given to them by the President under section 130 of the Act, and no objection is made to that decision during the expedited procedure inquiry, there is no inherent obligation on a Member to make further inquiries. The Federal Court in the past has shown reluctance in reopening decisions of the Registrar on whether an applicant has sufficiently complied with requirements in Forms (see Northern Territory v Lane (1995) 59 FCR 332). Likewise I do not think that Members conducting an expedited procedure inquiry are obliged to delve into the issue of compliance in the absence of contentions unless it is manifestly and patently clear that there is a serious jurisdictional issue at stake. As Barton J said in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 (at 428): “where jurisdiction is not contested…very slight inquiry may be adequate, and many cases will, to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.”
[6] In the absence of any contentions to the contrary, and having regard to the above legal principles, I have conducted this inquiry on the basis that the native title party has complied with the requirements imposed by Form 4 and that it has been properly accepted by the Tribunal.
[7] Both the grantee party and the government party were notified of this objection on 10 January, 2001 and a preliminary conference was held on 24 January, 2001. Following that conference a number of discussions between the grantee party and the native title party with a view to reaching an agreement which would have resulted in a full Tribunal inquiry not being necessary. Unfortunately an agreement was not reached due to a number of factors and at a listings hearing held on 6 July, 2001 it was agreed that it would be appropriate for the Tribunal to determine the objection.
[8] All parties indicated a desire that this matter be determined “on the papers”, and I have formed the view that the material lodged with the Tribunal is sufficient to permit this course of action.
[9] Both the native title party and the government party lodged formal contentions with the Tribunal. At a Listings Hearing on 10 April, 2001 the grantee party indicated that it would rely on the government party’s contentions and would not be independently submitting material. That course of action has been adopted and the Tribunal has before it no written contentions from the grantee party.
[10] The proposed tenement is an exploration licence for an area of approximately 148.4 square kilometres, located approximately 92 km north westerly of Balladonia in the Shire of Dundas. The grant of an exploration licence will allow the grantee to explore for minerals for a term of 5 years from the date of the grant.
[11] The land the subject of the proposed tenement is a combination of pastoral lease and Vacant Crown Land. Of the total area some 12,012.51 ha (or 80.9% of the total) is Vacant Crown Land. The remaining area is divided between two pastoral leases: Pastoral Lease 3114/1137 (1,877.67 ha/ 12.7%), the vested lessee of which is J P Campbell and Pastoral Lease 398/815 (951.31ha/6.4%) the vested lessee of which is Allied Granites Pty Ltd.
[12] The uncontested material submitted by the government party indicates that there are no Aboriginal communities within the vicinity of the proposed tenement area.
[13] Material supplied from the Register of Aboriginal Sites by the Aboriginal Affairs Department indicates that there is a site entered on the Interim Register. The site is identified as Number 1338 and the name supplied is “Fraser Range 2”. The information from the Register indicates that it is an artefact site which is closed to access.
General Legal Principles
[14] The key statutory provision governing this Inquiry is section 237 of the Act which is in the following terms:
“A future act is an act 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 (disregarding any trust created under Division 6 of Part 2) 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 their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) 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.”
[15] It is now clear that in conducting expedited procedure inquiries the Tribunal is required to make a predictive assessment about the likelihood of the act in question having any of the consequences set out in paragraphs (a) – (c) of section 237. This issue was dealt with by French J in Smith v Western Australia [2001] FCA 19. As His Honour pointed out (at [23]): “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 s237.”
[16] With respect to whether any party has an evidentiary onus, I refer to the decision of Ward v Western Australia (1996) 69 FCR 208 where Carr J rejected such a notion. His Honour pointed said (at 217-218):
“In my opinion no burden of proof, not for that matter any evidentiary burden of a legal nature, lies on any party to proceedings before the Tribunal inquiring into the matters referred to in s.237…Natural justice or procedural fairness (as it is more commonly known) does not require any such onus to be placed on one party rather than the other. Not all the relevant facts will be in the possession of a particular party in every case. The Act is silent on the question of onus of proof…I do not consider that there is any implied imposition of any such onus.”
[17] The Tribunal adopts “the commonsense approach to evidence”, however if facts are peculiarly within the knowledge of a party, and no evidence is adduced, then it is open to the Tribunal to form an adverse inference. As Carr J said in the last mentioned case (at 217):
“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 evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the commonsense approach to evidence.”
[18] The final general legal principle I refer to is the so called “presumption of regularity”. The Federal Court has accepted that it is open to the Tribunal to presume that a grantee party will act lawfully, subject, of course, to it being accepted that this is simply a presumption which does not result in the Tribunal inevitably concluding that there is not a real risk of interference or major disturbance – see Carr J in Ward v Western Australia (1996) 69 FCR 208 at 229-230. To the extent indicated, I have applied the presumption of regularity in this matter.
The Evidence/party contentions
[19] The government party, as indicated previously, provided uncontested material to the Tribunal concerning registered sites under the Aboriginal Heritage Act 1972, information on land tenure and details of Aboriginal communities in the vicinity of the proposed tenement.
[20] In addition the government party also lodged its standard Statement of Contentions. Set out hereunder are paragraphs 4 –6 of the Statement of Contentions dated 15 March, 2001:
The Government party contends that the grant of the proposed tenement is not likely to interfere directly with the carrying on of the community or social activities of the objectors in relation to the land for the following reasons:
(a)there are no Aboriginal communities situated on, or in the vicinity of, the proposed tenement;
(b) section 63 of the Mining Act 1978 deems every tenement of the type proposed to be granted subject to the holder fulfilling certain conditions set out in the said section, i.e. reporting discoveries of minerals, making safe any holes, pits, trenches, etc, and preventing damage to property and livestock.
(c) In relation to pastoral leasehold included within the proposed tenement section 20(5) of the Mining Act provides that, unless the written consent of the Occupier is obtained or unless the warden by order otherwise directs (other than in relation to land referred to in section 20(5)(c)), the holder of a mining tenement is not entitled to prospect, fossick on, explore, mine on or under or otherwise interfere with any crown land that is:
(i) for the time being under crop, or which is situated within 100 metres thereof;
(ii) used as or situated within 100 metres of a yard stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(iii) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
(iv) the site of or situated within 100 metres of any cemetery or burial ground;
(v) land the subject of a pastoral lease within the meaning of the Land Act which is the site of, or situated within 400 metres of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of that pastoral lease.
The Government party contends that the grant of the proposed tenement is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the
(a)the Aboriginal Heritage Act 1972 applies to the land, and provides protection for
Aboriginal areas or sites as defined in section 5 of the Act, 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 before using the land for any purpose which would result in a breach of section 17 of the Act. 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;
(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.
The Government party contends that the grant of the proposed tenement is not likely to involve major disturbance to the land or create rights whose exercise is likely to involve major disturbance to the land, as the grantee party, 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.”
[21] The native title party lodged a Statement of Contentions dated 29 March, 2001 which was supplemented by two Affidavits of Thelma Vera Tucker, the first dated 17 April, 2001 and the second dated 19 July, 2001.
[22] The Statement of Contentions of 29 March, 2001 states as follows:
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 with 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 subsection 237(a) of the Native Title Act applies to the decision to seek application of the expedited procedure.
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.”
[23] Of the two Affidavits, that of 19 July, 2001 is of most assistance to the Tribunal and is set out in full below:
1.“I am a registered native title claimant for the area where the proposed prospecting licence (E69/1572) is to be issued. I am capable of speaking for this country on behalf of my ancestors.
2.My father, mother, great grandmother, grandfather, grandmother’s, my stepbrother’s father, uncle’s, aunt’s, our eldest sister and two brother’s was born in our claim area. Other ancestor may be born or buried in this area too.
3.Our ancestor belong to this country, they walked around this area. The old people used to search for water, hunt, camp, take part in ceremonies, corroberee and tell dreamtime stories, long before the Whiteman came. Our stepbrother’s father is buried near Frasers Range.
4.Around the 1890’s, our grandparents built a station near this area and was still owned by our uncle until 1980. Our grandmother is buried at the station. Since the assertion of British sovereignty our ancestor possessed, occupied used and enjoyed traditional laws and customs in this region.
5.People should have to ask the family of the traditional owners, to look and see if there are any secret places the mining activity could damage.
I have to look after and protect this country for my ancestor so, we can pass it on to our children and grandchildren. It is very important to pass on our culture to our children. When we can, we go and show this country to our families. Other traditional people, come to these places from all over.
6. The area where the Government want to issue the exploration license No E69/1572 have some registered artifacts (in a closed area). Some sites are not known. Our ascendant told us the old people used to go all around, so there could be more sites including dreaming tracks, grave sites, water holes and ancestral spirits that we need to protect from being destroyed.
7. We want to go back and live on our traditional land, on our family station Nanambinia, so we can teach our culture to our children on our land before it is all lost.
To look for sites, teach them to hunt, look for other bush food, water holes. We can camp, tell dreaming stories of the old times.
8. I believe that the statements in my story and, told to me by my ancestors in this Affidavit are true.”
Section 237(a) – Interference with community or social activities
[24] It is uncontested that there are no Aboriginal communities situated on, or in the vicinity of the proposed tenement.
[25] The native title party presented very little evidence of any community or social activities that occur on the site of the proposed tenement. Reference was made at paragraph 3 of the Affidavit of Thelma Tucker of 19 July, of the fact that the applicants and other native title holders visit the area of the proposed tenement. There is also a statement at paragraph 7 of a desire to return to traditional land to teach the younger generation how to hunt and look for bush food and water holes. It is open to discern other implicit or passing references in the other material that was lodged with the Tribunal by the native title party. Basically the material presented was very general with few specific references to the area of the proposed tenement.
[26] Whilst I am not prepared to find that there is no evidence before me of any community or social activity carried on by the holders of native title (such that there is no ground to hold an inquiry), there is insufficient material for me to find that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of the native title party.
[27] Again, having regard to the paucity of the evidence before me, it is not necessary for me to express a view on whether section 237(a) requires an investigation into activities with a spiritual dimension. All that I would say is that even if it were, there is still not sufficient evidence before me that would warrant a finding that there is a real chance of interference within paragraph (a).
Section 237(b) – Sites of particular significance
[28] The inquiry required of the Tribunal pursuant to paragraph (b) is to determine if there are areas or sites of particular significance. This was explained by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 20 in the following terms (34-35):
“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. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the 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.”
[29] Reference was made at paragraph 6 of Thelma Tucker’s Affidavit of 19 July to Site 1338 on the interim register referred to previously and the fact that there “could be more sites including dreaming tracks, grave sites, water holes and ancestral spirits that we need to protect from being destroyed.” There is also a reference to a particular burial site near Frasers Range (at paragraph 4).
[30] Obviously if a site is not disclosed to the Tribunal because, as it would appear, the native title party has no evidence of its location, then the Tribunal has no material before it that it is of “particular significance”. To be of “particular significance” a site of area must be capable of identification, and its existence verified – see comments of Deputy President Franklyn in Albert Little & Ors on behalf of the Badimia People/Western Australia/Wildbeach Corporation Pty Ltd, unreported, WO00/167, 9 May 2001 at [10] While I have sympathy with the evidentiary predicament the native title party faces (especially in those instances where there has been a physical severance for a period of time with a specific area) the nature of the inquiry required pursuant to paragraph (b) is clear.
[31] With respect to Site 1338 no evidence was adduced that it is of particular significance to the native title party. Indeed the native title party made no comment on the significance of the site at all, other than of its existence.
[32] Consequently, there is no evidence before the Tribunal that there are any areas or sites of particular significance within the meaning of paragraph (b) on the proposed tenement.
Section 237(c) – major disturbance to land or waters
[33] The proper approach to the interpretation of paragraph (c) was summed up by Tamberlin J in Dann v Western Australia (1997) 74 FCR 391 (at 401) as follows:
“It is correct to say that the interpretation of the words “major disturbance’ is a question of ordinary statutory construction which involved the ascertainment of the meaning and effect of those words. However, when applying the words, as interpreted, to the facts of any particular case it is necessary to take into account the views of all members of the community without excluding any particular section of the general community. There is no justification discernible in the language of section 237(c) for excluding the views of any section of the community. Equally it would be wrong to suggest that the views of any particular section of the community must in all instances be determinative. The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or waters can be properly characterised as 'major’.
The appropriate approach is to take into account the concerns of the Aboriginal community including matters such as community life, customs, traditions, and cultural concerns of native title holders. It would be an unduly restrictive approach to refuse to take account of these considerations on the ground that ‘community life’ and ‘Aboriginal traditions’ are covered by pars (a) and (b) of s237 to the exclusion of their consideration under par (c). The reference to community life and traditions in s237(a) and (b) does not displace the mandate expressed in s109(2) that in conducting inquiries account must be taken of the cultural and customary concerns of Aboriginal peoples.”
[34] It is clear from Dann v Western Australia that the Tribunal is required to make a value judgment in determining whether the future act is likely to involve major disturbance. In particular regard must had to the fact that while disturbance as a concept has to be approached from the viewpoint of the wider community, its impact is peculiarly local. In that regard not only is the Tribunal required to ascertain the impact of a future act on local people, but also to have regard to cultural considerations when those local persons are indigenous Australians. What may be a major disturbance to local people may be inconsequential for people living many miles away. What may be a major disturbance to local native title holders from their cultural prism may not be to other people in the local community who do not share that culture.
[35] The material before me indicates that the area of the proposed tenement has some burial sites (paragraphs 2 and 4 of the Affidavit Thelma Tucker of 19 July 2001), and that it is visited by members of the native title claim group (paragraph 5). It is also contended that potential ground disturbance may interfere with the dreaming stories of that cultural landscape (paragraph 2 of the Statement of Contentions of the native title party).
[36] The uncontested evidence before me is that there are no Aboriginal communities in the vicinity of the proposed tenement. There is no evidence of sites of significance other than Site 1338, and that site is protected by the provisions of the Aboriginal Heritage Act 1972. It would appear that the native title holders do not use the area of the proposed tenement for hunting, fishing, camping or other traditional activities on a regular basis. If such activities do take place no evidence was put before me to that effect. The evidence of community or social activities on the area of the proposed tenement is of small compass.
[37] The government party has drawn to the Tribunal’s attention the restrictions placed on the grantee party by sections 20 and 63 of the Mining Act 1978, and contends that the activities of the grantee will not cause a physical disturbance to the land which constitutes a major disturbance by the standards of the whole Australian community.
[38] The area of the proposed tenement is quite large (148.4 km2) and it is located in a remote area of Western Australia. I have before me no evidence of any geological or environmental or cultural issues that are such that could warrant a finding of major disturbance.
[39] On the material presented to the Tribunal I find that the grant of the proposed tenement would not be 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.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 69/1572 to Gold Partners Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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