Judy Hughes and Others on behalf of the Thalanyji People/Western Australia/Adelaide Prospecting Pty Ltd
[2002] NNTTA 27
•8 March 2002
NATIONAL NATIVE TITLE TRIBUNAL
Judy Hughes and Others on behalf of the Thalanyji People/Western Australia/Adelaide Prospecting Pty Ltd, [2002] NNTTA 27 (8 March 2002)
Application No: WO01/443
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Judy Hughes and Others on behalf of the Thalanyji People (Native Title Party)
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The State of Western Australia (Government Party)
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Adelaide Prospecting Pty Ltd (Grantee Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 8 March 2002
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – no evidence from native title party – act attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) ss 151, 237
Cases:Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002
Representative of the
native title party: Mr Jerome Frewen
Representative of the
Government party Mr Phil Boyland, Department of Mineral and Petroleum Resource
Solicitor for the
Government party Crown Solicitor’s Office
Representative of
the grantee party Mr Dennis Hawtin
REASONS FOR DETERMINATION
Background
On 13 June 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 do a future act, namely to grant exploration licence 08/1228 (‘the exploration licence’) to Adelaide Prospecting Pty Ltd (‘the grantee party’). The exploration licence is over an area of 31.57 square kilometres located 133 kilometre south of Pannawonica, in the Shire of Ashburton (centroid - latitude 22o 46 minutes, longitude 115o 54 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 12 October 2001, Judy Hughes and Others on behalf of the Thalanyji People (‘the native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure. The native title party’s Application for Determination of Native Title (WC99/45) was registered by the Tribunal on 7 February 2000. The area of the exploration licence is situated on this claim area
The Tribunal accepted the objection application on 22 October 2001.
In accordance with its normal Procedures under the Right to Negotiate Scheme, 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. The Directions required the Government party to provide to the Tribunal and the other parties a statement of its contentions and documents on which it intended to rely, on or before 23 January 2002. The native title party was to provide on or before 30 January 2002 its statement of contentions and documents, to include a statement of the nature and location of sites or areas of particular significance on or adjacent to the proposed tenement, identifying in each case the particular significance of the site or area; a statement of the community or social activities that it contends will be directly interfered with; documents (including any affidavits to be relied on); a statement of the evidence to be given by the witnesses for the native title party, and details of where it proposes that evidence be heard. The grantee party was to provide a statement of contentions and documents on or before 6 February 2002.
By 18 January 2002 the Government party had complied with the directions. On 4 February 2002 the native title party lodged a statement of contentions.
A listing hearing was held on 14 February 2002 before me. It was noted that the Government party had complied with directions relating to it and that the grantee party would also be relying on those contentions. The native title party confirmed advice that it had given to the Tribunal’s Case Manager on 4 February 2002 that it would be relying on its statement of contentions only and did not intend to lodge further documents. I pointed out to Mr Frewen that if no evidence was lodged then the likely consequences would be a determination that the expedited procedure was attracted. Mr Frewen referred to the difficulties of the wet and law business in December and said he would need more time if he were to comply. The grantee party objected to this. The native title party did not further pursue the request for an adjournment of the listing hearing to allow it to lodge evidence. Accordingly, I directed that I would conduct an inquiry on the papers already before the Tribunal. As at the date of this determination no evidence had been lodged by the native title party.
Possible dismissal for failure to comply with Directions: The native title party has not complied with Directions within the times originally specified by the Tribunal and did not seek an adjournment of the listing hearing to do so. The objection was lodged on 12 October 2001 with a closing date for objections of 15 October 2001. There were no substantive negotiations between the native title party and grantee party, although a draft agreement was sent to the grantee party by the native title party. Accordingly, by the time of the listing hearing on 14 February 2002 there had not been negotiations of any consequence (which might have provided some reason for non-compliance) nor any steps taken by the native title party to comply with the Tribunal’s directions in relation to documentary evidence or statements of evidence. The provision of contentions is only part-compliance. It appears that no steps were taken to attempt to comply before the commencement of law business or the wet season. Nor was any extension of time sought prior to the compliance date. Although there would have been grounds for dismissal of the objection for non-compliance with directions (s 148(b) NTA) I have decided to finalise the matter by making a determination that the expedited procedure is attracted.
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
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
The nature of an exploration licence and activities permitted by it.
In Western Australia/Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002. I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]). I adopt those findings for the purposes of this inquiry.
The evidence
The evidence provided by the Government party establishes that the underlying land tenure of the proposed tenement is a combination of pastoral lease 3114/1014 and reserve Res 17673 for the purpose of an addition to the De Grey Mingenew Stock Route. The State advised that there are no Aboriginal communities on or in the vicinity of that land and produced a search of the Aboriginal Sites Register which revealed that there are no sites within the area of the tenement application registered under the provisions of the Aboriginal Heritage Act 1972.
Community or social activities (s 237(a))
The native title party’s contentions contain general statements about their connection to the claim area; the creative beliefs based on the Dreaming; the regulation of group life based on traditional law and custom; the responsibility of Elders when people seek access to the land and the sanctions which can be imposed; and the right to continue to access the area of the exploration licence for hunting, camping, lighting fires, religious sites and site inspections and the collecting of bush tucker. These contentions even if it were possible to accept them as evidence are not specific enough to the tenement area or sufficiently detailed to show what community or social activities of the claimants are likely to be interfered with.
Site of particular significance (s 237(b))
The native title party contended that the Aboriginal Heritage Act 1972 (WA) permits only punitive consequences and does not prevent innocent or inadvertent damage to sites. It also allows lawful disturbance to sites. In WO01/179 & WO01/180 (Walley) I accepted that the presumption of regularity in relation to the protection of sites applied and as a consequence there was not likely to be interference with them. I make the same finding in this matter. There are no sites on the Register kept by the Department of Indigenous Affairs nor is there any other evidence of sites. The statement of contentions contains generalised statements about the Dreaming and sites but little of a specific nature to support the objection even if evidence were forthcoming.
The native title party further contended that the grantee party will carry out activities to the full extent permitted by the exploration licence and that although provided with a copy of a heritage survey has declined to sign it, this putting at risk any sites within the proposed exploration licence. The grantee party is not obliged to sign a heritage agreement or carry out a heritage survey (Kevin Peter Walley & Ors (Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, Mr John Sosso, 17 August 2001 at [27]) and the reasons for it declining to sign the agreement are unknown in this case. There is no evidence from past practice that the grantee party has not complied with the Aboriginal Heritage Act or that it has given other reasons for concern that it will not do so in the future. Clearly the grantee party will be aware of its obligations under that Act. The licence will contain an endorsement drawing attention to the Aboriginal Heritage Act. Further, it will receive the document ‘Guidelines for Aboriginal Consultation for Mineral and Petroleum Explorers from the Government party which explains those obligations. The Government party’s contentions in this matter also explain them (para 5).
Major disturbance (s 237(c))
There are no contentions specifically addressing the issue of major disturbance in s 237(c).
Conclusion
There is no onus of proof on the native title party in these proceedings but where evidence is peculiarly within their knowledge and not produced the Tribunal is entitled to draw an adverse inference. The community and social activities of the claimant group and sites of particular significance to them are matters which they could be expected to know about. No evidence has been produced on them and the contentions are expressed in such general terms as to be of no assistance. It is appropriate to make a determination that the expedited procedure is attracted.
Determination
The determination of the Tribunal is that the grant of exploration licence 08/1228 to Adelaide Prospecting Pty Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
8 March 2002
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