Judy Hughes & Others on behalf of the Thalanyji People/Western Australia/Blackjack Resources Pty Ltd - [2002] NNTTA 191

NATIONAL NATIVE TITLE TRIBUNAL

Judy Hughes & Others on behalf of the Thalanyji People/Western Australia/Blackjack Resources Pty Ltd, [2002] NNTTA 191 (23 August 2002)

Application No.: WO01/442 (E08/1183)

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 & 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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Blackjack Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:          Deputy President The Hon EM Franklyn QC
Place:               Perth
Date:                 23 August 2002

Catchwords: Native Title – Future Act – proposed grant of Exploration Licence – Objection Lodged relying of s237(a), (b), (c) – Contentions in general terms and providing no particulars of community or social activities carried on or of location or significance of sites – no evidence to arguably indicate a real risk of interference or disturbance within the meaning of s237(a), (b) or (c) – determination that the future act attracts the expedited procedure.

Legislation: Native Title Act 1993
Aboriginal Heritage Act 1972
Land Act 1933

Cases: State of Western Australia v Ward (Matter No P89/2000) [2002] HCA 28 (delivered 8 August 2002)
Smith v Western Australia (2001) 108 FCR 442
Dann v Western Australia 74 FCR 391
Little v Western Australia (2001) FCA 1706 at 23

REASONS FOR FUTURE ACT DETERMINATION – WO01/442

Background

On 13 June 2001, the State of Western Australia (“the State”) gave notice under Section 29 of the Native Title Act 1993 (“the Act”), that it may grant to Blackjack Resources Pty Ltd (“the grantee”) an exploration licence the subject of application 08/1183 (the proposed licence) over 221.65 square kilometres of land situated 96 kilometres south easterly of Onslow, the notice containing the statement that the State considers the grant to be an act attracting the expedited procedure.

On 12 October 2001, Judy Hughes and others on behalf of the Thalanyji people, the native title claimants under application WC99/45 registered 14 July 1999 (“the objectors”), lodged an objection against the inclusion of the said statement in such notice on the grounds that the objectors believe, amongst other things, that the proposed act has the propensity to directly interfere with the community life of the persons who are the holders of native title in relation to the land concerned, the propensity to interfere with areas or sites of particular significance, will involve major disturbance to the land, will substantially interfere with the claimant people’s community presence or activity on the land, has the propensity to interfere with spiritual aspects of community life and that the level of protection provided by the Australian Heritage Act and the Guidelines issued to persons obtaining Exploration Licences is not an appropriate level of protection.

The Tribunal issued directions requiring each of the parties to provide to the Tribunal and serve on the other parties a statement of their respective contentions together with specified other information and material, the State to do on or before 23 January 2002, the objectors on or before 30 January 2002, and the grantee on or before 6 February 2002. The directions required the objectors’ statement of contentions to include a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, 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 that it contended are likely to be interfered with directly by the grant of the tenement and to provide to the Tribunal and the other parties, inter alia, a statement of the evidence to be given by any of its witnesses. The dates for compliance with those directions were subsequently extended, the State complying on 4 February 2002 and the objector on 27 February 2002. The objectors contentions are set out subsequently herein in full. No statement of evidence or other material was lodged by the objectors. The grantee did not lodge any contentions or other documents and informed the Tribunal that it believed the objections should be “sorted out” by the State. A listing hearing was set for 19 April 2002, all parties being notified. The Government party was the only party to attend. The grantee’s representative, by email dated 19 April 2002, advised that he could not attend and would not be available before 21 May 2002. The objectors representative, who was to attend and participate by telephone, was not available. Having regard to the nature of the proceedings, the material that had been lodged by the State and objectors respectively in response to the directions made, that the objectors were relying solely on their contentions and the grantee’s failure to comply with the directions, and being satisfied that the issues for determination could be adequately dealt with on the papers, I determined that the matter should be so determined without holding a hearing. The parties were so advised.

The State’s Evidence and Material

The State’s uncontested documentary evidence reveals the proposed licence to be situated on Pastoral Lease 3114/1096, Reserves 46122 (National Park and Native Conservation) and 34205 (Main Roads), unallocated Crown land and a road. It states without challenge that there is no Aboriginal community within its vicinity. It reveals there to be one site recorded on the register of Aboriginal sites within the boundaries of the proposed licence. The site is “Parry Range” (PO6176), with registered site type “artifact”, situated approximately 2¾ kilometres from the western boundary of the proposed licence and approximately 3 kilometres south of the northernmost section of its northern boundary. Within its boundaries are a current Mining Lease (M08/1162) and a current Prospecting Licence (P08/457), close to each other approximately 2 kilometres from the eastern boundary, each of small size and each situated on land the subject of expired prospecting licences. Much of the western half of the proposed licence is also on land the subject of expired Exploration Licences E08/973, E08/1110 and E08/805. The Tengraph map provided by the State reveals a substantial part of its western boundary to be common with a substantial part of the eastern boundary of the granted Exploration Licence (E08/1162). The North-West Coastal Highway runs through the proposed licence area within its northernmost two thirds approximately parallel with the western boundary of the tenement. There is an aircraft landing ground on the proposed licence adjacent to the Highway and approximately 4 and 7.5 kilometres from the western and northern boundaries respectively. Another aircraft landing ground is situated on the adjoining granted exploration tenement E08/1162, within one kilometre of the north western boundary of the subject tenement application. The site “Parry Range” is shown on the map as straddling/abutting the highway. The map also reveals a number of tracks running through and within the boundaries of the proposed licence to variously located wells and a bore. The Nanutarra-Wittenoom road runs through the southern portion of the proposed licence in a south-east direction. Nanutarra is situated approximately 8 kilometres to the south-east of the proposed licence and is shown on the map as having an aircraft landing ground, a road house and stopping place for teams and Stock. The map also reveals there to be an application for an exploration licence over land abutting most, if not all, of western boundary of the proposed licence south of its common boundary with E08/1162, and the lower portion of its eastern, and portion of its southern boundary, to abut land the subject of expired Exploration Licence E08/983.

The Objectors’ Material

The objectors rely only upon the Statement of Contentions of the Thalanyji People lodged with the Tribunal on 27 February 2002 set out hereunder.

STATEMENT OF CONTENTIONS

OF THE THALANYJI PEOPLE

The Impact of the Proposed Act upon Native Title Rights and Interests of the Thalanyji People.

(a)The act is likely to interfere directly with the carrying on of the community and/or social activities of the persons who are the holders of native title in relation to the land or waters concerned
(b)The act is likely to interfere with sites of particular significance, in accordance with their tradition, to the persons who are holders of native title in relation to the land or waters concerned
(c)The act is likely to involve major disturbance to land or waters or create rights whose exercise leads to major disturbance.
The Government Party (the State)

The State intends to issue an Exploration Licence to the Grantee Party for the purpose of exploring on the subject land.
The rights granted by an Exploration Licence allow activities that warrant the State imposing, by both condition and statute, responsibilities to rectify damage to land property and livestock.
The State does not intend to impose a condition relating to Aboriginal sites but instead to endorse the license with a notation drawing the attention of the grantee to provisions of the Aboriginal Heritage Act 1972.
The protection of Aboriginal sites by the Aboriginal Heritage Act 1972 provides only punitive consequences for unlawful and knowing interference with Sites. The Aboriginal Heritage Act does not prevent innocent or inadvertent damage to sites. The Aboriginal Heritage Act allows lawful disturbance to Aboriginal Sites.

The Grantee Party

The Exploration Licence proposed to be granted to the Grantee Party would entitle the grantee to remove and replace material from the land. Such rights are likely to give rise to activities inconsistent with the enjoyment of native title rights and interests.
It is probable that the grantee will carry out activities to the full extent of the licence permitted.
The Thalanyji People require a Work Program Heritage Protocol for compliance with the Aboriginal Heritage Act.

Position of the Objector

This submission is lodged on behalf of the native title claimant group known as Thalanyji. The claimant group has sought a determination of Native Title in relation to the land and waters in its claim. The land the subject of the proposed Exploration Licence may be granted over the land and/or waters including land and/or waters in respect of which the Thalanyji are the registered native title claimants.
In the claim area, a majority of individuals comprising the claim group reside in or are adjacent to or not far from the townships and pastoral properties within the claim area.
Aboriginal people have resided in the claim area since time immemorial as hunter-gatherers living their traditional nomadic lifestyle, free to enjoy their native title rights and interests. Since the late 1800’s the claim region has been the interest of firstly, pastoral activity and subsequently, mineral, petroleum and gas activities. As a consequence of these activities the native title claim group members have come, over time, to reside in townships, reserves or on pastoral leases, where they were taken for the purposes of work or as settlements removed from the introduced European society, which became the dominant economic and social group of the region. Work on pastoral stations allowed members of the claim group to continue their hunter-gatherer traditions. Their ability to sustain a nomadic lifestyle according to their traditions was impaired by the activities of the new immigrant settlers. Other members of the claim group continued to live traditional nomadic lifestyles, with the last of such persons drifting into township residence in the 1970’s.
Despite the movement of the native titleholders the claim group retains connections to the entire claim area. They access the claim area, including the area applied for by the grantee, for the purposes of enjoying their native title rights and interests and the claim group continues to exercise access to the land subject of the claim. Even where pastoral land occurs, the claimants continue to exercise their native title with relative freedom, and have ready access to the leasehold area.
Such leases contain a reservation under the 1933 Land Act in favour of the native titleholders having free access to the claim area for traditional purposes. The claim group holds rights of access pursuant to the Native Title Act 1993.
The claim group has followed practices since time immemorial based upon creation beliefs that occurred during the era of the Dreaming, during which huge numbers of ancestral beings in animal and/or human form crisscrossed the claim area leaving the mythological tracks as proof of their existence. Evidence of these can be found in numerous anthropological reports, and in records of the Heritage and Culture Division of the Aboriginal Affairs Department. Prior to the Dreaming the landscape was flat and featureless. The claimant group believes that their lands waters and sky and themselves are a product of the Dreaming, and it is these beliefs that determine the ordering of their social, economic, and political lives.
The regulation of group life is pursuant to a system of traditional laws and customs based upon mutual obligations and shared responsibilities amongst members of the claim group to both the land and themselves. The laws and customs are maintained orally and enforced by particular members of the claim group who have particular responsibility for the matter (and area) to be adjudicated upon. Laws are enforced by the operation of traditional responsibilities given to the elders, meetings with or without sanction, through to punishment.
In accordance with the traditional laws and customs the claim group has a responsibility to care and maintain the claim area for the purposes of preserving the Dreaming. Such responsibility is vested in Elders or those who are the lawholders for the claim group. In accordance with these traditions Elders must ensure that persons outside of the claim group who seek access to land consult with them about intended activities. If consultation does not occur and the land is damaged then these Elders are subject to sanction in accordance with traditional law and custom.
Individual members are free to enjoy the group or individual rights that they possess, all members of the claim group presently have a right to freely access the claim area for hunting and camping purposes and using resources. Presently the claim group has a significant number of rights and interests recorded on the Register of Native Title claims, the enjoyment of such rights and interests are likely to be interfered with by the grantee’s activities. It is more likely than not that members of the claim group will seek to enjoy at a minimum the right to access the land the subject of the Act for hunting, camping, lighting fires, religious rites and site inspections, and care and maintenance during the term of the proposed licence.
Bush tucker continues to be part of the diet of a majority of the claim group. The claim group and members preserve the land and its resources for this purpose. Hunting and camping and access generally within the claim area is free and open and considered as such by the group. However the enjoyment of such rights are denied the group when confronted with competing activities such as disturbance to lands by pipelines, mining, roads and exploration on their land.
If access is requested by other parties to the traditional lands of the native title party, it is customary for arrangements to be put in place which recognise reciprocal obligations, which are given effect to under an agreement. These agreements enable other land users (such as the applicant of the Exploration Licence in the present case) to access the land to pursue their activities subject to the consent and knowledge of the claim group, and in recognition of the responsibilities the claim group has to the land. The claim group will need to consider the nature of the proposed act, and the kind of traditional rites that may need to be carried out on the land to allow such an activity to take place, which will be determined by the elders of the group as a properly convened group meeting. If such agreements are not made it is the experience of the claim group that its members are denied access to the relevant areas, and the relevant persons responsible for that country have not been able to discharge their traditional duties, and that this is a serious breach of traditional law and custom.
The Dreaming beings carried out particular activities at certain places and such places become sites of significance. Further sites of significance may arise by virtue of factors such as birth, conception, meeting places, burial places, etc. All land within the claim contains such sites. The reason that traditional law imposes responsibilities is to ensure that these sites are not disturbed by persons entering onto land without appropriate knowledge and consent. In respect of this act there are sites of significance on the land due to the paths travelled by ancestral beings. These sites are of particular significance as they confirm the existence of the Ancestral beings who created the landscapes.

Summary of Statement of Contentions
(A)The act is thus likely to interfere directly with activities as follows:
(i)Due to the necessity to co-exist with the activities being carried out by the grantee the native title holders will be impeded in their ability to freely access the area and enjoy their native title rights and interests.
(ii)The likely movement of vehicles, machinery and excavation activities will interfere with the natural plant life and animals of the area, denying members of the claim group access to naturally occurring resources.
(iii)Interference with maintenance of traditional law and custom occurs if done without consultation. This requires the holding of meetings, inspection of the relevant land and retrospective activity to do all those things that the objectors and claim group have a responsibility to do pursuant to traditional law.

(B)The Act is likely to interfere with areas or sites.
(i)The grantee may inadvertently interfere with sites through not being aware of their existence; and
(ii)If there is evidence of a site it is more likely than not that the permission to interfere with a site (a section 18 application under the Aboriginal Heritage Act) would be made. In making a decision the matter is one for the discretion of the Minister – this is a subjective decision the result of which is incapable of any assessment.
(iii)The activities of the grantee contemplate land disturbance; all non-specific sites of the claim areas are of particular significance in accordance with group tradition.

S237(a)

The contentions confirm that there are no Aboriginal communities on the land the subject of the proposed licence and do not suggest that any reside in its near vicinity. As to community or social activities of the objectors it alleges only that the claim group have rights of access to the claim area, including that of the proposed licence, and do access the same for the purpose of enjoying the native title rights and interests. They assert that the claim group has a right to access the claim area for hunting and camping purposes and for using resources and refer to the rights and interests recorded on the Register of Native Title Claims. They do not, however, allege the carrying on of any activity and speak in terms of interference with the “enjoyment of rights and interests” being likely to be interfered with by the grantee’s activities. That the claim group have rights and interests recorded on the Register of Native Title Claims does not lead to any inference that an activity of a community or social nature pursuant to any such claimed right is carried on upon the proposed licence area or is likely to be directly interfered with by the future act. As to paragraph 18 of the contentions, the High Court in State of Western Australia v Ward (Matter No P89/2000) [2002] HCA 28 (delivered 8 August 2002) at 192 determined that the grant of a pastoral lease in Western Australia extinguished the native title right to “say who could and who could not come onto” pastoral leasehold land.

[6.1] It was decided in Smith v West Australia (2001) 108 FCR 442 that the interference referred to in s237(a) of the Native Title Act 1993 must be substantial in its impact on the relevant community or social activities; that, in determining whether an apprehended interference is “direct”, the Tribunal makes an evaluative judgement to determine whether “the act” is likely to be a proximate cause of that interference, and that, in assessing the risk of interference, the Tribunal is entitled to have regard to other factors that so affect the communal or social activities that the impact of the proposed act is insubstantial, including restraints imposed on such activities by third parties and external regulation. There is no evidence before the Tribunal from any of the objectors of the carrying on, on the land the subject of the proposed licence, of any social or community activity of the holders of native title. Without such evidence the question of direct interference with the carrying on thereof cannot be evaluated. Some of the matters relevant to the evaluation are the activities of the leaseholder on and over the area of the proposed licence, including the movement of vehicles and livestock, the fact that public roads run through that area, the location and use of those roads and of tracks and wells throughout that area, the fact of prior mining tenement within the area and, of course, the nature of the particular community or social activity and the manner and method by which it is carried on. I find that the statement of contentions do not lead to a conclusion the grant of the proposed tenement is likely to interfere directly with the community or social activities of the holders of native title.

S237(b)

The directions made in this matter on 26 October 2001, and again on 22 February 2002, required the objectors to provide a statement of contentions including a statement of the nature and location of sites or areas of particular significance on or adjacent to the proposed licence area, identifying the particular significance of the same. The contentions however go no further than to allege that all land within the native title claim contains sites of significance. That allegation is unsupported by any evidence and, in any event, does not reveal the nature, location or significance of any site. There is no evidence on which the Tribunal can evaluate the likelihood of interference with any area or site of significance or whether an area or site is of relevant particular significance within the meaning of s237(b) of the Act. That the objectors contentions did not provide the statement as directed, leads to the inference that either there are no such sites known to the objectors or that such sites as there may be are not of relevant particular significance. That the objectors provided no statement of evidence from any person to identify the nature and location of sites and their particular significance supports that inference. That the contentions make no reference to the registered site “Parry Range” situated within the area of the proposed licence adjacent to the North-West Coastal Highway, leads to the conclusion that it is not a site of relevant particular significance. The evidence is such that I am unable to conclude that the grant of the proposed tenement is likely to interfere with any areas or sites of particular significance in accordance with their traditions to the persons who are the holders of native title in relation to the land concerned.

s237(c)

Beyond asserting at the outset that the grant of the proposed licence “is likely to involve major disturbance to the land or waters or create rights whose exercise leads to disturbance”, the objectors’ contentions do not address the issues of major disturbance within the meaning of s237(c) or the likelihood of such disturbance. The issues pertinent to that subsection are also ignored in its “Summary of Statement of Contentions”. The meaning of the expression “major disturbance” as used in the subsection was considered by the Full Court of the Federal Court in Dann v Western Australia 74 FCR 391 in which Tamberlin J said at 401

I need say little about the second subject, the meaning of “major disturbance”. The Court was informed in the course of argument that some Tribunal members had held that an envisaged disturbance to land or waters should be regarded as a “major disturbance” if it was so categorised by one of the parties. If that view had been taken, it is clearly wrong. It is for the Tribunal to determine whether a particular future act will involve a disturbance to land or waters and, if so, whether the disturbance answers the description of being a “major disturbance”. Submissions from the parties may assist the Tribunal in reaching conclusions on these matters, but assertion is not enough; the Tribunal must decide.

The word “major” is an adjective of degree. In determining whether a given envisaged disturbance to land or waters amounts to a major disturbance, the Tribunal must make a value judgement. I agree with my colleagues that, in doing this, the Tribunal must give the term “major disturbance” its ordinary English meaning. It must consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a “major disturbance” even if it would be unimportant to non-Aboriginals.

There is no evidence from any member of the claimant group. The matters to which I have referred in paragraph [6] as relevant to the issue of “direct interference” are also relevant to that of “major disturbance”. I also take into account the legislative regime which governs the conduct of exploration activities as outlined in the State’s contentions and, importantly the schedule of conditions annexed to those contentions which will apply to the grant. In the words of Nicholson J in Little v Western Australia (2001) FCA 1706 at 23 “there is no evidence which arguably establishes a real chance or risk of major disturbance to the land or waters concerned or the creation of rights having that effect”.

Determination

It is the determination of the Tribunal that the grant of exploration licence 08/1183 is an act which attracts the expedited procedure.

The Hon EM Franklyn QC

Deputy President