June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon
[2005] NNTTA 83
•15 November 2005
NATIONAL NATIVE TITLE TRIBUNAL
June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon, [2005] NNTTA 83 (15 November 2005)
Application Nos: WO05/327 and WO05/329
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into future act determination applications
June Harrington-Smith and Raymond Ashwin on behalf of the Wutha People (WC99/10) (native title party)
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The State of Western Australia (Government party)
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Trevor John Dixon (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 15 November 2005
Catchwords: Native title – future act – proposed grant of prospecting licences –expedited procedure objection applications – contentions but no evidence provided by native title party – direct interference with carrying on of community or social activities unlikely – interference with sites of particular significance unlikely – major disturbance to land unlikely – acts attract the expedited procedure.
Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 237
Mining Act 1978 (WA) s 57(4)
Cases:June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon, NNTT WO05/323 & WO05/325, [2005] NNTTA 82 (15 November 2005)
Representative of the
native title party: Mr Trevor Preston, Australian Interaction Consultants
Representative of the
Government party: Mr Clyde Lannan, Department of Industry & Resources
REASONS FOR DETERMINATION
Background
On 9 February 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P37/6616 and P37/6617 (‘the proposed licences’) to Trevor John Dixon (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grants attracted the expedited procedure.
On 9 June 2005, June Harrington-Smith (formerly June Ashwin) and Raymond Ashwin on behalf of the Wutha People (WC99/10, registered 15 June 1999) (‘the native title party’) made expedited procedure objection applications to the Tribunal – WO05/327 in relation to P37/6616 and WO05/329 in relation to P37/6617.
The area, location and extent to which the proposed licences are overlapped by the native title party are as follows:
P37/6616 – comprising an area of 107.41 hectares, 5 kilometres northerly of Leonora in the Shire of Leonora, 100% overlap;
P37/6617 – comprising an area of 153.37 hectares, 7 kilometres northerly of Leonora in the Shire of Leonora, 100% overlap;
In addition, the Wongatha registered native title claimant group (WC99/1, registered 10 February 2000) entirely overlaps the proposed licences and has the status of a native title party. On 9 June 2005, the Wongatha native title party also lodged two expedited procedure objection applications (WO05/326 and WO05/328). These objections were withdrawn following an agreement between the native title party and the grantee party on 2 August 2005.
Conduct of the inquiry
The conduct of the inquiry followed the same course as June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon, NNTT WO05/323 & WO05/325, [2005] NNTTA 82 (15 November 2005), Hon C J Sumner, which involved the same parties.
Contentions and documentary evidence from the Government party have been submitted which the grantee party also relies on. The native title party has submitted only a statement of contentions, applicable to both matters, in exactly the same terms as provided in WO05/323 and WO05/325. As with WO05/323 and WO05/325 an argument exists that the native title party has not fully complied with the directions and that the objections should be dismissed pursuant to s 148(b) of the Act for failing to comply with the Tribunal’s directions. Neither of the other parties sought such an order and in the circumstances of this case I am prepared to consider the matter based on the statement of contentions alone, as I did in WO05/323 and WO05/325. I am satisfied that I can adequately deal with the matters on the papers in accordance with s 151(2) of the Act. Whether this will continue to be an acceptable approach in future matters will be subject to further consideration (see comment in WO05/323 and WO05/325 at [29]).
Legal principles and facts similar to WO05/323 and WO05/325
The legal principles and relevant facts are very similar to those considered in WO05/323 and WO05/325.
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.’
In Walley vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[35]). I adopt those findings for the purposes of this inquiry.
Evidence in relation to the proposed acts
Government party documentation establishes the underlying land tenure of the proposed licences to be primarily pastoral lease. 38.6 per cent of P37/6617 also comprises Crown Reserve for the purposes of the Peak Hill stock route.
With respect to prior mining activity the whole area of both proposed licences is subject to a declaration by the Minister that no application for an exploration licence should be made or granted because of extensive mining being carried on in the area (s 57(4) Mining Act). The proposed licence areas are close to Leonora which the Tribunal is aware from its own knowledge is an area of considerable historical and current mining activity. This is supported in relation to the area of the proposed licences by the Department of Industry and Resources Quick Appraisal documentation provided by the Government party.
There are no Aboriginal communities on or in the immediate vicinity of the proposed licences and no Aboriginal sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) on the areas of the proposed tenements. However there is one mythological site within one kilometre of the proposed licences named as ‘Nyukali’ (Site ID 1176, closed access, no restrictions) and one artefact scatter within one kilometre of the proposed licences identified as ‘Tabletop Hill’ (Site ID 2569, open access, no restrictions).
The grant of the proposed licences will be subject to the standard endorsements and conditions imposed on the grant of all prospecting licences in Western Australia and other conditions which prohibit mining operations which restrict the use of the reserves and others providing for notification to the pastoral lessee of certain prospecting activities.
The Government party will also impose the following condition on the grant of the proposed licences:
‘In respect of the area covered by the licence, the Licensee, if so requested in writing by the Wongatha People, the applicants in Federal Court application no. WAD 6005 of 1998 (WC99/1), such request being sent by pre-paid post to reach the Licensee’s address, P O Box 964, Scarborough WA 6922, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wongatha People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council.’
Community or social activities (s 237(a))
There is nothing of significance to distinguish these matters from WO05/323 and WO05/325 and I adopt the findings at paras [16]-[18] of those matters to find that there is unlikely to be direct interference with the carrying on of the native title party’s community or social activities from the grant of the proposed licences.
Sites of particular significance (s 237(b))
I adopt the findings in paras [19]-[21], [25] (in relation to the Tjilkamurra dreaming) and [26] of WO05/323 and WO05/325 and find it is unlikely that there will be interference with sites of particular significance to the native title party in accordance with their traditions. There are no registered sites on the area of the proposed licences. There is no evidence to support a finding that sites identified in the vicinity are sites of particular significance to the native title party. While the nature of the Nyukali site (mythological and closed access) suggests it could be a site of particular significance to the native title party, it is not referred to in their contentions.
The grantee party is aware of his responsibilities under the Aboriginal Heritage Act, aware of the sites on the Register in the vicinity of the proposed licences and I am satisfied that the Government party’s regulatory regime is such as to make interference with sites unlikely.
Major disturbance (s 237(c))
I adopt the findings in WO05/323 and WO05/325 at paras [27]-[29] to find that the grant is not likely to involve major disturbance to land or create rights whose exercise will do so.
Determination
The determination of the Tribunal is that the grant of prospecting licences P37/6616 and P37/6617 to Trevor John Dixon are acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
15 November 2005
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