Hughes v State of Western Australia and Another
[2003] NNTTA 69
•1 May 2003
Reported at (2003) 182 FLR 362
NATIONAL NATIVE TITLE TRIBUNAL
JudyHughes (Thalanyji)/Western Australia/ Taipan Resources NL, [2003] NNTTA 69
(1 May 2003)Application No: WO01/618
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
JUDY HUGHES on behalf of the Thalanyji People
(native title party)
- and -
THE STATE OF WESTERN AUSTRALIA (government party)
- and -
TAIPAN RESOURCES NL (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: John Sosso
Place: Brisbane
Date: 1 May 2003Hearing Date: 5 December 2002
Representatives:
Native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Government party: Mr Clyde Lannan, Department of Industry and Resources
Grantee party: Mr Marcus Walter, Taipan Resources NL
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – legal principles – evidence – tribunal not bound by rules of evidence – principles governing reception of evidence – statement not contested – likelihood of direct interference with the carrying on of community or social activities – likelihood of interference with areas or sites of particular significance – likelihood of major disturbance to land or waters – an act which attracts the expedited procedure.
Legislation:
Mining Act 1978 (WA) s 63
Native Title Act 1993 (Cth) ss 29, 44H, 82, 109, 151, 237
Cases:Kevin v Minister for the Capital Territory (1979) 37 FLR 1
Little v Western Australia [2001] FCA 1706
Michael Page/Grant Robert Archer & Ors/Northern Territory DO01/20, unreported, Member Sosso, 1 February 2002
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Northern Territory v Lane (1995) 59 FCR 332
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Western Australia/David Daniel & Ors/Valerie Holborrow & Ors/Wilfred Hicks & Ors [2003] NNTT 4
Western Australia v Smith (2000) 163 FLR 32
REASONS FOR DETERMINATION
Background
[1] On 14 November 2001, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the government party’) advised its intention to grant exploration licence 08/1256 (‘the proposed tenement’) to Taipan Resources NL (‘the grantee party’) under the Mining Act 1978 (WA). The proposed tenement is situated 137 km south of Pannawonica (centroid - latitude 22o 51 minutes, longitude 116o 08 minutes), comprises 176.7 square kilometres and is located in the Shire of Ashburton. The notice included a statement that the government party considered that this act is an act which attracts the expedited procedure.
[2] On 19 November 2001, Judy Hughes and others on behalf of the Thalanyji People (‘the native title party’) lodged a Form 4 (Objection to Inclusion in an Expedited Procedure Application) with the Tribunal. The Form 4 was subsequently amended with a further application lodged with the Tribunal on 7 March 2002. The native title party’s Application for Determination of Native Title (WC99/45) was registered by the Tribunal on 7 February 2000. The area of the proposed tenement is only partially contained within the claim area with an overlap of approximately 1% between the tenement and the claim area.
[3] Deputy President Sumner issued Directions to the parties in this matter on 11 March 2002. The Directions require the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. Pursuant to those Directions the Tribunal has before it written contentions and related documents lodged by both the native title party and the government party.
[4] On 24 March 2003 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
[5] No party has requested that there be an “on country” hearing, or that oral evidence be given. Rather, all parties were content for a determination to be made “on the papers” pursuant to section 151 of the Act. The Tribunal is empowered to make a determination on the basis of the written material submitted, however a hearing must be convened if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties – s 151(2). The power to make a determination without a hearing is a broad one. R D Nicholson J in Little v Western Australia [2001] FCA 1706 said (at [55]): “The patent intention of the power is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties.” I am satisfied, on the basis of the material provided, that a determination can be made without convening a formal hearing.
[6] The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“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.”
Legal principles
[7] In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered, in the context of Western Australia, the applicable legal principles governing expedited procedure objection inquiries (at 439 – 449). I adopt those findings for the purpose of this inquiry.
The evidence - General
[8] The Government party’s evidence establishes that the underlying land tenure of the proposed tenement is almost entirely comprised of pastoral leases, with an extremely small area of road reserve and reserve (watering place). The underlying tenure composition of the subject area is as follows:
·Pastoral Lease 3114/1236 (Kooline) – 1,019.40 ha or 5.8% of the total area;
·Pastoral Lease 3114/647 (Wyloo) – 16,336.23 ha or 93.5%;
· Watering Place (CR 1110) – 119.37 ha or 0.7%; and
· Road Reserve (No. 8476) – less than 1 ha.
[9] The uncontested evidence of the government party is that there are no Aboriginal communities located within the vicinity of the proposed tenement.
[10] The Aboriginal Sites Register reveals there are no sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA) within the subject area.
[11] The grantee party provided no contentions or evidence and indicated that it would rely on the material lodged by the government party. As there is no evidence of the grantee party’s intentions in relation to the proposed tenement I have dealt with this matter on the basis that the grantee party will fully exercise its legal entitlements – see also Michael Page/Grant Robert Archer & Ors/Northern Territory DO01/20, unreported, Member Sosso, 1 February 2002 at [20].
Evidence of the native title party
[12] On 29 November 2002 the native title party lodged with the Tribunal a statement of Judy Hughes who is a registered native title claimant in the Thalanyji claim group. It would appear that the statement was made by Ms Hughes in Onslow on 28 November 2002. The statement was marked by Ms Hughes by means of a cross with the words “Her Mark” written immediately above and below the cross, and with her name written on either side of the cross. It is not clear who made these notations and the document was not officially witnessed by any named person. It should also be noted that while the document resembles a statement of evidence, it was described in the covering letter from the native title party’s representative as a statement of contentions. Set out below is the document:
Statement of Judy Hughes
“I, Judy Hughes of Onslow in the state of Western Australia, Pensioner, state as follows:
1. I am a Registered Applicant of the Thalanyji People Native Title Claim group, and a member of the Buurabalyji Thalanyji Association Incorporated, the organisation established to represent the Thalanyji People.
2. The Thalanyji People live in and around Onslow WA.
3. Many of the Aboriginal people who live in the claim area are descended from Thalanyji People, who are members of the original descent group of the Onslow and surrounding regions. The origin of the name “Thalanyji” is from the language name of speakers who were in the area before the arrival of European occupation. The language is still spoken today by Elders of the Thalanyji.
4. Taipan has applied for an exploration licence (E08/1256), which is in the Pilbara area, and lies in part of the traditional country of the Thalanyji people.
5. The Thalanyji people have formed their own association known as the Buurabalayji Thalanyji Association Incorporated. The Thalanyji People operates an office in Onslow, and has acquired assets to enable it to manage its own affairs on its lands, and to maintain its culture.
6. The Thalanyji People are consulted about the activities that occur on their land. For example, Main Roads WA consulted with the Thalanyji about the possible impact of replacing the Ashburton Bridge upon their sites of significance. The Thalanyji anthropologist, Dr Edward McDonald, was engaged by the group to carry out a site survey, which established that there were sites of significance in the area that should not be disturbed. As a result of these consultations, an alternative proposal was put to the Thalanyji People by MRWA, and in the course of these consultations the Thalanyji People identified an alternative location. This required the preparation of an s 1B application to the Minister for Aboriginal Affairs under the Aboriginal Heritage Act 1972-80.
7. It is appropriate that the Thalanyji be consulted about activities occurring on their lands, to ensure that sites of significance are not disturbed, and that the community life, the incidence of native title, are all acknowledged and respected by land users.
8. My family lives in Onslow and the surrounding areas, which include the pastoral leases within the claim boundary. My mother, father and Elders taught me that the areas of “Thalanyji” had been in traditional country from before the time when the white people came. My mother, father and Elders told me of how the British settlers came to our country to mine and look for gold, and they passed on to me stories of the early days.
9. These early European pioneers were in search of water, and many perished, or nearly perished, for lack of water. The Thalanyji People have a tradition of assisting people in hardship. To give in return, or exchange, is part of our tradition, as when Aboriginal people travel to unfamiliar areas they “exchange” items of trade, and it is expected that part of this “trade” is to assist others in trouble. So the Thalanyji People naturally assisted the Europeans, with the expectation of receiving something in return. They took the men to water. After recovering from their hardship, and regaining full health, the men found the local area was prospective for gold and other minerals, and was good country for running stock. Aboriginal people had no use for such things, and didn’t know that gold (and cattle) were of significant value to Europeans. So the tribe from that generation did not know that they were surrounded by “wealth”, wealth which would change their lives forever. Far from receiving benefits from the European settlers, in exchange for the service provided to them, the Thalanyji People suffered enormous hardship, mistreatment and loss of land, food and culture from the settlers that they had made friends with.
10. Also we showed them the land and boundaries of our traditional grounds, and also the names that represented the area. For example Mindoroo, Peedamulla and many more areas have Aboriginal names and meanings.
11. Some areas are forbidden for the Thalanyji people to stay at, as they are places that bring sickness or bad luck.
12. The tribe always moved from place to place within the general area of claim in search of hunting & gathering of food. As weather patterns changed they would move from one waterhole to another, and from one area rich in hunting to another. This kept the tribe on the move due to the changes in the food cycle that would have the tribe travelling to various rock holes to & fro in the claim area. Neighbouring clan groups would also move into our areas as a result of seasonal weather patterns, for food, water and ceremonial or law purposes. Trade would occur, and this was shown through marriages, gifts of food and artefacts, and other items of exchange.
13. Because of violence between black and white settlers living in coastal areas of Australia, the Thalanyji People did not know the dangers ahead and the difficult road that survival would take.
14. Eventually the British colonial police force (and “native welfare”) rounded up the Thalanyji tribe, not knowing their traditional rights as keepers to the land, because of lack and understanding.
15. We also recognise other tribes as visitors who have lived in the land of the Thalanyji claim in the last several decades as being nomads of different tribes, and cultures, many of whom have now married into the local Thalanyji People.
16. Passing on traditions is important to the Thalanyji People. I grew up at different places in the Thalanyji claim area, with my mother and father and the Elders. We lived in humpies and tents, and always shared what we had with my aunties and uncles. There was a big mob uf us. I cannot mention the names of the old people because they have now passed away and we are not allowed to use their names once they die. This is part of our traditional laws and customs.
17. When I was growing up, my family was always working on stations. Although the government of that day gave us no legal rights and told us what to do, the owners were okay most of the time, and gave the family work. W would live on the station and would cook for everyone. The owner would allow us to take food back to the camp where we lived. He also brought tobacco, tea, flour and sugar. He used to provide us with sheep and goat sometimes.
18. This is in keeping with our tradition. In return for working on the station, an understanding was developed between the European owner and the traditional people that giving back was necessary – that the owner would provide food and clothes, and that we would work for him. The owner was also expected to recognise that traditional practices continued on “his” land – ceremonies and law continued, and we would continue to gather roots, shrubs and medicinal plants, the native “chewing” tobacco, trees for spears and other hunting implements, and kangaroo and emu. We would make our own medicines from scrub (a tradition absolutely necessary as we were not permitted to see doctors).
19. The tradition of making bush medicine has been passed down to me by the Elders.
20. As mentioned above, for most of our food however, we used to do our own hunting. We used to hunt bush turkey, goanna, kangaroo, emu, docks, bardies and cockies. I was taught by my Elders how to hunt in the traditional way. My parents and elders would show us all the right native fruit and berries such as silky pear, wild tomatoes, wild onions and wild watermelons, honey of the eucalyptus trees and gum of different scrubs. W also would catch and cook kangaroo and emu. The meat that we caught was always dished out in accordance with our traditional customs. This meant that the best cuts went to the old people, and the remainder was dished out to family. The old people would teach us about different plants and animals.
21. Our Elders taught us how to look for water during the dry periods when there were no pools. We would dig a soak in the riverbed until the clear fresh water would come through into the hole.
22. To make a fire, we used to get some tree, split the wood fill it up with grass and sharpen it. We would then rub the sharpened stick into a groove rapidly, until smoke was produced. We then put grass in and gently blew on the smoke until a fire was formed. We would also tie a piece of string to the end of a stick and bundle some dry grass together. We would then bang this stick into the groove of the other stick to cause friction, which caused a spark to ignite, and the grass to catch fire.
23. When we were children, the Elders used to teach us stories while we were hunting and also around the camp. These stories were about the country. We still teach our children about these stories. They used to teach us these stories and sing these songs in the Thalanyji language. I speak the language and my older brother and sister still sing the songs about the country.
24. I teach the language to our children at home as well as to children in the local school.
25. I and other Thalanyji people continue to use traditions today. We go out on weekends and for school excursions and the Elders show the children how to hunt and fish and recognise and gather berries and fruits in the traditional way.
26. The Thalanyji People have rights under our laws and customs to travel around the station and our traditional country beyond that. We are able to live in that area and carry on the traditional activities. We also have the right to gather plants and animals and other things from the ground such as materials for tools and artefacts.
27. The tradition of “trade” still exists today. Anthropologists rely on Elders for stories about the country, and for information about “sites” of significance so mining people are able to carry on their business, while paying compensation to us for land use. In exchange for information that we give, we receive entitlement to carry on traditional practices.
28. There are many books written about the stories of the Thalanyji People today. Historians, anthropologists, oral history experts and sociologists have all described the life and customs of our people. Professional anthropologists such as Rory O’Connor, Eddie McDonald and Will Christensen, are some of the anthropologists who have built their reputation around our stories and lifestyle.
29. There are many traditions which are handed down, and which we still observe. These include traditions concerning death and burial, marriage, communication and ceremonial events.
30. Mining companies and explorers must now ask our permission before they carry out any exploration or mining. This is a legal requirement that came about from earlier damage of some of our more important places and let to the passing of the WA Aboriginal Heritage Act, which was enacted in 1972.
31. The applicant, Taipan Resources, wants to explore for minerals in our area. In our objection to their application attracting the expedited procedure, we asserted:
The objectors believe that the proposed act is not an act attracting the expedited procedure because the proposed act:
(a) once granted, is granted for a period of five years, which may be extended at the discretion of the Minister for Mines up to 9 years with further extensions permitted under exceptional circumstances. This gives the Grantee Party unfettered access to the area for a very long time, and there is no requirement upon the Grantee Party to advise the Native Title Party of its activities, the location of its activities, the timing of its activities and the extent of disruption to the land.
(b) The Native Title Party continues to use the application area for traditional activities. These include, inter alia, hunting for food in the application area (on a seasonal basis), and gathering local flora, edible berries and sees; gathering honey ants; gathering ochre for ceremonial purposes; practising ceremonial activities; carrying out traditional law business each year; visiting the land to repair sites and waterholes and to commune with spirits; visiting the land to teach children their culture and traditions; teaching children the traditional names of features, flora, fauna and sites; visiting sites of significance; trading in resources from the area; visiting Dreaming sites, visiting rivers and creeks for fishing, and to teach children about water and river sites
(c) We also outlined the damage that would be done by the grant of the licence, as follows: under s66 of the Mining Act, the Grantee Party is authorised to:
·enter and re-enter the land with agents, employees, vehicles, machinery and equipment to explore for minerals;
·dig pits, trenches and holes, sink bores, costeans and tunnels to the extent necessary for the purpose in, or under, the land;
·excavate, extract or remove up to 1000 tonnes, or such greater amount as the Minister may, in any case, approve in writing;
·Take and divert water from any natural spring, lake, pool, or stream situate in or flowing through the land or from any previous excavation made for any purpose in connection with exploring for minerals on the land.
There is no obligation on the part of the Grantee Party to consult with the Native Title Party before carrying out such activities. The exercise of these rights of these activities will cause distress to the Native Title holders, who are aware that such activities are likely to be carried out by the Grantee Party to the full extent permitted, involving disturbance to the land and waters concerned, and to their traditions as outlined in (b) above. For example teaching children about country within the area of application, whilst digging and costeaning is being carried, will present significant risk to person as well as potential damage to sites. Under Aboriginal tradition, if damage occurs to sites, the custodian may be sanctioned for not preventing such damage.
(d) the level of protection provided by the Aboriginal Heritage Act and the Guidelines issued to Persons Obtaining Exploration Licenses is not an appropriate level of protection sufficient to protect sites on the land.
32. The area of the application is the home of rockholes and sites of significance. The applicant has not agreed to undertake a heritage survey to protect sites of significance. Therefore, the application risks damaging at least 3 sites of significance known to the Thalanyji, and possibly more. And without knowing the location of where the applicant proposes to carry out his activities, serious damage could be done to many more sites of significance.
33. Nor has the applicant agreed to enter into an agreement about how the activities of the company could address the community life of the Thalanyji People. If we are on country, teaching children about traditional foods and medicines, it is very likely that the activities of the applicant would risk the life of the children through use of heavy machinery, vehicles and the like, and given that the activities are allowed over many years, the risk exists for a very long time. There is no requirement on the applicant to notify us of their proposed activities, their timing, or their location. This is an not a good situation.
34. Law business has now commenced in the area and will continue until the end of January 2003.
35. We have authorised Desert Management as our agent in this matter, and would recommend that the company negotiate an agreement with Desert Management. If our consent is required, our agent will consult with us.”
[13] Section 109 of the Act provides, inter alia, that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. Moreover, section 109 also provides that in carrying out its functions, the Tribunal is not bound by technicalities, legal forms or rules of evidence.
[14] When considering a not very dissimilar provision in another statute, Gleeson CJ and McHugh J pointed out in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628, that it was “intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.” In the earlier Federal Court decision of Northern Territory v Lane (1995) 59 FCR 332, O’Loughlin J specifically considered section 109, and held that in the context of the beneficial nature of the Act, the contents of the Preamble to the Act, and the methods of operation set out in sections 82 and 109, all assisted in pointing to a proposition that the Tribunal (he was considering the specific duties imposed on the Registrar) should be permitted to perform its statutory obligations with a degree of flexibility in harmony with the mandates of the Act (at 336).
[15] The Tribunal in carrying out its statutory functions has been given a wide degree of latitude, and, as noted, is not bound by the rules of evidence. While not being bound by the rules of evidence, it does not follow that the Tribunal will invariably disregard those rules. The following analysis of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256 remains relevant:
“The Tribunal and the Minister are free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that ‘this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force’, as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force.”
The point being made by Brennan J is, in this context, that the Tribunal must base its determination on facts properly before it. As Brennan J later pointed out (at 256): “Facts can be fairly found without demanding adherence to the rules of evidence.” It is, nonetheless a truism, that the rules of evidence normally provide a sound guide to the best means of obtaining and fairly assessing those facts. Should the Tribunal wish, it is open to it to apply the rules of evidence in any given instance if the presiding Member so determines. The principle underpinning the rule may well be the appropriate means of the Tribunal properly informing itself: see Kevin v Minister for the Capital Territory (1979) 37 FLR 1 at 2. Nonetheless, the Tribunal is entitled to have regard to evidence which is logically probative, whether or not it is legally admissible under the rules of evidence – per Brennan J at 257.
[16] However, irrespective of the body of law relating to rules of evidence, which can be put aside when appropriate, the Tribunal is bound by the rules of natural justice. The Tribunal must ensure that each party has been properly heard, had the opportunity to put forward its contentions and primary evidence and that material must be fairly, thoroughly and impartially assessed. A Tribunal Member, in reaching a determination, “must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value” per Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488.
[17] The Tribunal has pointed out in the past that contentions by representatives of a party do not constitute primary evidence. It has also been said by State and Federal Courts as well as this Tribunal that in native title proceedings (of whatever kind) the very best evidence of native title comes from native title holders themselves as distinct from their representatives or people with professional expertise in given fields. It is also the case that the Commonwealth Parliament has specifically provided in section 151 for Tribunal determinations to be made “on the papers”. It is the case that almost all expedited procedure objection inquiries are held “on the papers” without either hearings “on country” or without witnesses being called to give oral evidence and then being subject to possible cross-examination. The number of proposed future acts which government parties assert the expedited procedure are so numerous, and the resources of each of the main parties is so limited, that inquiries conducted on the basis of documentary materials lodged are practically the only way in which the expedited procedure objection process can operate. As Deputy President Sumner recently observed: “This inevitably means that the Tribunal will receive documentary evidence which it will rely on as evidence of the facts stated therein.” Western Australia/David Daniels & Ors/Valerie Holborrow & Ors/Wilfred Hicks & Ors [2003] NNTTA 4 at [27]. How much weight the Tribunal ascribes to the material lodged depends on a number of factors which Deputy President Sumner discusses.
[18] In this inquiry, the Tribunal has before it a document which it would appear is a witness statement but which the deponent has neither sworn or affirmed to its truth, which has not been formally witnessed and which one can only presume has in fact been marked by Ms Hughes. In Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 Davies J said (at 5): “In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties.” In this matter none of the other parties has raised any objection to the reception of this document. The contents of the document have not been disputed or queried in any manner. Indeed, neither the government nor grantee party has even raised the form of attestation of the statement. In short, the Tribunal has before it an uncontested document which on its face is the statement of Ms Hughes. A commonsense and fair approach in such circumstances is to accept the document on its face and to deal with the material outlined therein as is appropriate when making a predictive risk assessment pursuant to section 237.
Community or social activities (s 237(a))
[19] Ms Hughes’ statement contains quite detailed information about community and social activities within Thalanyji traditional country, including hunting and gathering food and making bush medicine. Nonetheless the vast bulk of her evidence is historical – see paragraphs 12 and 20-23. I have no reason to doubt the veracity of her account of what were the traditional activities of the Thalanyji, however the task given to the Tribunal when making a section 237(a) assessment, is to assess the likelihood of direct interference with ongoing community or social activities.
[20] Ms Hughes does assert that community and social activities take place within the boundaries of the proposed tenement. Indeed at paragraph 31(b) of her affidavit there is a long list of such activities which are said to take place. The problem with this paragraph is that it gives no details of:
(a)who engages in them;
(b)how many traditional owners are involved in such activities;
(c) how often they are engaged in;
(d) what part or parts of proposed tenement are accessed;
(e)what are the seasonal variations in such activities; and
(f)the importance of the activities to the traditional life of the claim group.
[21] It also should be noted that although Ms Hughes says that the claim group use the area of the proposed tenement for traditional activities, only a tiny segment of the proposed tenement (less than 5%) is actually overlapped by the Thalanyji native title determination application. The application covers an area of some 18,432 square kilometres, whereas the overlap area with the proposed tenement would be less than 5 square kilometres.
[22] It is not necessary for current purposes to deal with the question of the relevance of community and social activities that are said to occur outside the boundaries of an application but within the area of a proposed tenement. Suffice it to say, it is clear that although the Thalanyji claim covers a huge area of Western Australia, the extent of its overlap with the proposed tenement is tiny, and it is difficult to conceive, on the basis of the material before the Tribunal, how the granting of the proposed tenement would have any serious impact on the traditional activities deposed to by Ms Hughes.
[23] When making a predictive risk assessment pursuant to section 237(a) it is necessary to have regard French J’s analysis in Smith v Western Australia (2001) 108 FCR 442. His Honour dealt, firstly, with the question of “likelihood”. He said (at 449):
“The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term ‘likely’ in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such a judgment would potentially permit, without the benefit of any negotiation, quite significant risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction a forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep it within the realm of the expedited procedure. Consistently with the objects of the Act, the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of kind contemplated by s237.”
[24] A threshold issue in any predictive risk assessment pursuant to each of the section 237 paragraphs is to assess whether there is any likelihood of interference or disturbance as explained above by French J. In this matter I am not satisfied that there is, in fact, any likelihood that the grant of the exploration licence would result in direct interference with community or social activities. The evidence provided about those activities is scant. Ms Hughes states that she and other Thalanyji People live in and around Onslow (see para 2 of her statement), which is located more than 150 km north-west of the subject area. I find it very difficult, on the material before me, to conclude that exploration on a tenement of 176 square kilometres would be likely to directly interfere with the stated community and social activities of the Thalanyji People. I have this difficulty as there is no specific evidence about such activities occurring on the subject area other than generalisations. No evidence is provided of specific land forms, water bodies, ceremonial sites or the like that are unique to the proposed tenement. In fact, the body of Ms Hughes statement is couched in general and historical terms, and while offering an interesting and informative account of the interaction of the traditional owners with the changes imposed on them over time, in reality it offers very little assistance to the Tribunal in sensibly assessing how the grant of the exploration licence would be likely to interact with contemporary community and social activities on the subject area.
[25] However, even if I were to find that there was a likelihood that the grant of the proposed future act would impact on the community and social activities of the traditional owners, French J highlights in Smith v Western Australia that such an intersection is not of itself determinative of a finding pursuant to section 237(a). His Honour held that the notion of direct interference involves an evaluative judgment that the proposed future act is likely to be a proximate cause of the apprehended interference. The interference in question (at 451) “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.” He also held that the evaluation is contextual, with the risk of direct interference being assessed with regard to other factors which so affect community or social activities that the likely impact of the proposed future act would be insubstantial.
[26] In this case the proposed tenement is almost entirely located within two pastoral leases. Any community or social activities of the traditional owners would be subject to those rights granted, and lawfully exercised, by pastoral lessees (and their employees and agents) – s 44H. It is also the case that there are no Aboriginal communities located on, or in the immediate vicinity of the proposed tenement. As previously highlighted, the evidence provided by the native title party about community or social activities occurring on the proposed tenement is scant and extremely general in nature. Finally, although the grantee party has not lodged any contentions or material about its intentions, the Tribunal is entitled to presume that it will act lawfully in exercising rights given under the exploration licence – Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Franklyn DP. Having regard to these factors, even if it could be said that there is a likelihood of some direct interference with community or social activities by the granting of the exploration licence, the degree of such interference would be of such a limited nature as to be categorized as trivial.
Sites of particular significance (s 237(b))
[27] As previously pointed out, there are no sites located within the proposed tenement which are entered on the Aboriginal Sites Register.
[28] Ms Hughes says in her statement (at para 32) that the area of the proposed tenement is the home of rockholes and sites of significance, but does not provide any further details of those sites or any information to indicate that they are of particular significance to the native title party.
[29] Even if one works on the assumption that Ms Hughes has the requisite knowledge and authority to speak for sacred sites, it is necessary that there be evidence before the Tribunal which identifies an area or site which is said to be of significance and further material which explains the particular sacredness of that area or site to members of the claim group, such that the Tribunal is able to find that it is an area or site of particular significance within the meaning of section 237(b). In this inquiry no such material has been adduced. It is a condition precedent to undertaking a risk assessment pursuant to section 237(b) that the Tribunal find that there are areas or sites of particular significance which may be interfered with by the grant of the future act. The evidence lodged by the native title party does not provide a basis for a finding that there are in fact any areas or sites of particular significance on or near to the proposed tenement, and there is, accordingly, no basis for undertaking a predictive risk assessment pursuant to section 237(b).
Section 237(c) - Major disturbance to land or waters
[30] Ms Hughes refers in her statement (at para 31(c)) to the activities authorised under the Mining Act pursuant to the grant of an exploration licence as set out in the Form 4 lodged by the native title party. No further information is provided in relation to section 237(c).
[31] There is, accordingly, no evidence before the Tribunal which discloses any material which could sensibly be taken into account in making a finding that there is a likelihood of major disturbance within the meaning of section 237(c). The undisputed evidence before the Tribunal is that there are no Aboriginal communities located on, or in close proximity, to the subject area. There is no evidence that the proposed tenement is subject to any particularly sensitive geological or environmental considerations. Moreover, the relevant land and waters are subject to ongoing disturbance by pastoral activities on each of the two pastoral leases covering the vast bulk of the area. The government party has lodged material about the protective nature of the legislative regime governing exploration in Western Australia, and the Tribunal is entitled to apply the presumption of regularity to the grantee party.
[32] Having regard to all of the above factors, I am unable to find that there is any likelihood of major disturbance within the meaning of section 237(c).
Determination
[33] The determination of the Tribunal is that the grant of exploration licence 08/1256 to Taipan Resources NL is an act attracting the expedited procedure.
J F Sosso
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