June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon

[2005] NNTTA 82

NATIONAL NATIVE TITLE TRIBUNAL

June Harrington-Smith and Another on behalf of the Wutha People/Western Australia/Trevor John Dixon, [2005] NNTTA 82 (15 November 2005)

Application Nos:       WO05/323 and WO05/325

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 – misdescription of locality in s 29 notice – 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) ss 20(5), 24(3) – 24(7), 46,

Cases:Dann v Western Australia (1997) 74 FCR 391

Dixon v Northern Territory [2001] NNTTA 29; (2001) 166 FLR 29

Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/197, [2005] NNTTA 24 (12 April 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

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

1. 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 P37/6559 and P37/6560 (‘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.

2. 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 – WO05/323 in relation to P37/6559 and WO05/325 in relation to P37/6560.

3. The s 29 notices provided the following information on the area and location of the proposed licences.

• P37/6559 – comprising an area of 167.08 hectares, 15 kilometres north easterly of Leonora in the Shire of Leonora – Latitude 28º30’, Longitude 120º57’.

• P37/6560 – comprising an area of 178.61 hectares, 14 kilometres north easterly of Leonora in the Shire of Leonora – Latitude 28º30’, Longitude 120º57’.

1. Maps provided reveal that while the coordinates given are correct, the s 29 notice contains a misdescription of the proposed licences’ locality. They are some 50 kilometres north westerly of Leonora. While defects in a s 29 notice can call into question the Tribunal’s jurisdiction to conduct an inquiry and make a determination (Dixon v Northern Territory [2001] NNTTA 29; (2001) 166 FLR 29), no jurisdictional challenge has been made in this case by either of the other parties. The information provided enabled valid objections to be lodged by both Wongatha and Wutha native title parties, who are long standing registered claimants over the area. The areas of the Wongutha and Wutha claims are the subject of considerable exploration and prospecting activity (existing and proposed) which have been the subject of s 29 notices. No new native title claims have been made in recent times in response to these notices. From my knowledge of the area I am satisfied it is highly unlikely that a claim would have been lodged and registered by another claim group in response to the s 29 notices. The coordinates were accurate and I am satisfied that the Tribunal can proceed to determine the objections.

2. The proposed licences adjoin each other and are 100% overlapped by the native title party’s registered claim.

3. 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 (WO05/322 and WO05/324) which were withdrawn following an agreement between the native title party and the grantee party on 2 August 2005.

Conduct of the inquiry

1. On 30 June 2005, 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. These directions, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate an agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. No agreement has been reached.

2. 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. The statement was lodged by the native title party’s representative and is not signed by any one. It contains very little material that could be regarded as evidence and I consider that dismissal under s 148(b) for failing to comply with directions could be justified (see Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/197, [2005] NNTTA 24 (12 April 2005), Hon C J Sumner at [7]). Neither of the other parties sought such an order and were content for the Tribunal to proceed to determine the matters on the material provided. In these circumstances I have decided to make a determination rather than dismiss the objections. I am satisfied that I can adequately deal with the matters on the papers in accordance with s 151(2) of the Act.

Legal principles

1. 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.’

1. 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

1. Government party documentation establishes the underlying land tenure of the proposed licences to be primarily Crown Reserve for the purposes of the Peak Hill stock route and resting places for travellers and stock.  22.5 per cent of P37/6559 also comprises pastoral lease.

2. There are no Aboriginal communities on or in the immediate vicinity of the proposed licences, however a search of the sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) indicates one historical site (identified as ‘old hotel’ within one kilometre of the proposed licences (Site ID 20687 open access, no restrictions) which may overlap with the southern most portion of P37/6560.

3. Department of Industry and Resources Quick Appraisal documentation provided by the Government party indicate that the entire area has been subject to considerable exploration and mining activity and there is continued interest in the area.

4. 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.

5. 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))

1. For the objections to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 46 and conditions to be imposed for prospecting licences, s 20(5) in relation to pastoral leasehold areas and ss 24(3) – 24(7) in relation to crown reserves, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.

2. The native title party contends that the objectors have connections to all the country over which the proposed licences will be granted.  The connections are maintained through hunting game, collecting bush food and medicines, as well as looking after and maintaining sites.  They say that exploration activity, including drilling and costeaning will drive away game and destroy plants and may damage sites.

3. Even if I accept this statement as evidence coming directly from the claimants (which it is not) it does not provide sufficient basis for finding that there is likely to be direct interference with their community or social activities.  The statement is not specific as to the nature, location, frequency or the number of people involved in the activities.  I also take into account that there is evidence of prior and existing mining and pastoral activities which will already have interfered with the activities, thus making it less likely that further prospecting operations will do so in a substantial and direct way.  Further, the grant of the proposed licences does not confer exclusive rights of access to the grantee party.  Any restriction on access by the native title party will be very limited in area given the nature of prospecting activities and the wide area over which any hunting or gathering may occur.  Any restriction would also be temporary.

Sites of particular significance (s 237(b))

1. The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. The fact that there is only one site recorded on the Register kept under the Aboriginal Heritage Act does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.

2. I adopt the findings of the Tribunal in Walley (at [50]-[51]) in relation to the Government party’s regulatory regime on protection of Aboriginal sites and of the Federal Court in Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77] which found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely.  More recently in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41 [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Vosperton’) (at [70]-[71]) I found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites.  I adopt those findings for the purpose of this inquiry.

3. I am satisfied on the facts of this matter that the Government party’s regulatory regime make it unlikely there will be interference with sites of particular significance to the native title party in accordance with their traditions (even if subsequent investigation establishes their existence).

4. In making this finding I have had regard to the following matters.  With respect to P37/6560, the nature of Site ID 20687 – historical with open access and no restrictions suggests it is not a site of particular significance in accordance with the traditions of the native title party.  The native title party does not refer to this site in its contentions and I infer from this that the Wutha People do not consider it to be a site of particularly significance to them.

5. The Tribunal has ascertained that there are the following other registered sites in the general vicinity of the proposed licences.

• Bannockburn 1 (Site ID 1119), Bannockburn 2 (Site ID 1120), Bannockburn 3 (Site ID 1121) and Bannockburn 4 (Site ID 1122).  These are all Artefacts/Scatter sites with open access and no restriction.

• Anaconda 1 (Site ID 20686) an artefacts/scatter site with open access and no restrictions.

1. The nature of these sites on the Register (artefacts/scatter, with open access and no restrictions) suggests that they are not sites of particular significance to the native title party in accordance with their traditions.  No evidence has been provided to identify them as such.  They are approximately one kilometre to five kilometres from the proposed licences and there is no reason to think they will be interfered with by prospecting on the licence areas.

2. The native title party contends that the proposed licences are located within an area that is highly sensitive to the Tjupan People, of whom the Wutha People are comprised.  The native title party also asserts that the proposed licences affect the Dreaming Track of the Tjilkamurra which are represented by creek beds.  It can be accepted that dreaming tracks and places associated with them are likely to be of particular significance to Aboriginal people but there is no specific evidence from the native title party claim group about the nature or location of this Dreaming site.  It is not possible to make a finding that it is a site of particular significance to the native title party which could be interfered with.

3. There is nothing in the circumstances of this case including the location and nature of any sites which rebut the presumption of regularity or render the Government party’s regulatory regime ineffective.  The grantee party advised at the Listing Hearing that he has had 22 years experience in mineral exploration and prospecting and has always acted lawfully by complying with the Aboriginal Heritage Act.  The registered sites are known to the grantee party and he has been put on notice of the existence of a dreaming story and associated sites which may be impacted on by prospecting activities on the tenements.  The grantee party has signed a RSHA with the Wongatha claimants.  While this agreement is not with the Wutha claimants it is evidence that the grantee party is aware of his responsibilities under the Aboriginal Heritage Act (Vosperton at [31]).  The Government party will impose the condition referred to above which confirms that the grantee party must sign such an agreement with the Wongatha claimants if for some reason it transpires that this has not already happened. 

Major disturbance (s 237(c))

1. Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the prospecting activities undertaken upon grant of the licence are likely to involve major disturbance, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.

2. The native title party contends that the grant of the proposed licences will create rights, including the right to drill holes and excavate material, the exercise of which will involve major disturbance to the land and that the removal of up to 500 tonnes of materials, as is allowed by the Mining Act 1978 (WA), constitutes major disturbance to the land. I adopt the findings in Vosperton (at [77]) that the rights granted under the Mining Act for exploration and prospecting do not necessarily lead to a finding that major disturbance to land is likely.  The issue will be determined by evidence in a particular case, which has not been provided by the native title party in these matters.  I have had regard to the fact that there are no Aboriginal communities in the vicinity, to the Government party’s regulatory regime under the Mining Act and conditions imposed dealing with ground disturbing activities and rehabilitation.  There is no evidence of any sensitive, topographical, geological or environmental factors which would lead members of the Australian community generally to think that prospecting would result in major disturbance to land.

Concluding comments

1. The contentions provided in these matters are identical to those provided in support of other objections (eg. WO05/327 and WO05/329) despite the fact that the relevant tenements are some 50 kilometres from each other.  Pro-forma contentions of this kind from the native title party unsupported by evidence are not sufficient to support a determination that the expedited procedure is not attracted.  I foreshadow that in future matters consideration will be given to dismissal of objections unless evidence is produced by the native title party in compliance with the directions.

Determination

1. The determination of the Tribunal is that the grant of prospecting licences P37/6559 and P37/6560 to Trevor John Dixon are acts attracting the expedited procedure.

Hon C J Sumner
Deputy President

15 November 2005