Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Neville Brosnan

[2001] NNTTA 78

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Neville Brosnan, [2001] NNTTA 78 (17 August 2001)

Application No:  WO00/427

IN THE MATTER of the Native Title Act 1993 (Cwth)

-     and –

IN THE MATTER of an inquiry into an expedited procedure application

Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People (native title party)

-     and –

The State of Western Australia (Government party)

-     and –

Allan Neville Brosnan (Grantee party)

REASONS FOR A DETERMINATION

Tribunal:                   Mr John Sosso
Place:  Brisbane
Date:  17 August 2001

Catchwords:             Native Title – future act – proposed grant of exploration licence – expedited procedure objection application – an act which attracts the expedited procedure.

Legislation:Native Title Act 1993 (Cth) s237, Aboriginal Heritage Act 1972 (WA), Mining Act 1978 (WA).

Cases:  Re Irruntyju-Papulankutja Community (1995) 1 AILR 222

Ben Ward & Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd, WO95/34, unreported, Hon C.J.Sumner, 29 February 1996
Re Nyungah People (1996) 132 FLR 54
Re Tjupan Peoples (1996) 134 FLR 462
Cheinmora v Striker Resources (1996) 142 ALR 21
Ward v Western Australia (1996) 69 FCR 208
Dann v Western Australia (1997) 74 FCR 391
Western Australia/Derrick Smith & Ors on behalf of the Gnaala Karla Boodja People/Western Australia, WO99/511, unreported, Deputy President Franklyn, 23 June 2000
Smith v Western Australia [2001] FCA 19
Roy Dixon on behalf of the Garawa and Gundanji People & Ors/Ashton Mining Limited/Northern Territory of Australia, DO00/1-DO00/7, unreported, Deputy President Franklyn, 23 April 2001
Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resourcs NL, WO00/93, unreported, Deputy President Franklyn, 18 May 2001
Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd, WO00/402, unreported, Member Sosso, 7 June 2001
Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO00/92, unreported, Member Stuckey-Clarke, 25 June 2001

Background

[1] On 18 October, 2000 the State of Western Australia (‘the government party’) issued a notice pursuant to section 29 of the Native Title Act 1993 (‘the Act’) that it proposed, inter alia, to grant exploration licence E51/887 to Allan Neville Brosnan (‘the grantee’), and that it considered that this act attracted the expedited procedure.  The notice highlighted that the grant of the exploration licence would permit the applicant to explore for minerals for a term of 5 years from the date of the grant.

[2] On the same day, a Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged by Kevin Peter Walley, Tony Moncrieff, Lily Walley, Rose Budd, Madeline Walley, Adeline Gilla, Robert Ginger, Marjorie Mourambine, William Baumgarten and Leslie Baumgarten on behalf of the Ngoonooru Wadjari People.

Prior to the lodgement of the objection application in this matter the Ngoonooru Wadjari native title application (WC99/17) and another native title determination application WC98/11 (the Baumgarten claim) were combined on 22 September 2000. Following the combination of applications, which is a species of amendment under section 64 of the Act, existing registration entries for the individual applications remain pending the application of the registration test under section 190A of the Act. The combined application was registered on 20 June 2001 and given the Tribunal number WC00/12.

Thus the Ngoonooru Wadjari native title application (WC99/17) was on the Register of Native Title Claims on 18 October 2000 even though the application had been combined in the Federal Court with the other application prior to that date.  The persons who jointly comprised the applicant and hence the registered native title claimant and the native title party at that time were:

Doug Fraser, Kevin Peter Walley, Robert Ginger, Tony Moncrieff, Adeline Gilla, Lily Walley, Madeline Walley and Rose Budd.

Doug Fraser is absent from the list of objectors and Marjorie Mourambine, William Baumgarten and Leslie Baumgarten have been added.  The latter three persons were not applicants on the WC99/17 application at the time when the objection was lodged.  The list of persons named on the objection, in fact, represented the list of persons comprising the applicant on the combined claim (WC00/12).

The fact that one person comprising the native title party was omitted and that some of the objectors were not jointly the registered native title claimant for Application WC99/17 at the time when the objection was lodged does not, in my view, affect the standing of the objection. Indeed the objection was clearly lodged on behalf of the Ngoonooru Wadjari People by the majority of persons comprising the native title party at the time. Further, the group making the objection reflect the group who comprise the amended applicant which now appears on the Register of Native Title Claims. Subsequent changes to the native title party are given effect to by section 30(4) of the Act.

[3] The native title party outlined in the following terms why it was contended that the proposed act did not attract the expedited procedure (paragraph 7 of Form 4):

‘The grant of the exploration licence will interfere with many Aboriginal sites of significance in the area and constitutes a major disturbance to the land and to the claimant’s attachment (including spiritual attachment) to the land.’

[4] The native title party gave the following outline of evidence that would be produced (paragraph 8 of Form 4):

‘1) Historical (including oral history)

2) Anthropological

3) Genealogical

4) Linguistic’

[5] Neither the grantee party nor the government party suggested that the native title party had not complied with the requirements of Form 4.  I do not intend, therefore, to deal with the type of issues canvassed by Deputy President Franklyn QC in Roy Dixon on behalf of the Garawa and Gundanji People & Ors/Ashton Mining Limited/Northern Territory of Australia DO 00/1-DO 00/7, 23 April 2001.

[6] The government party and the grantee party were notified of this objection on 28 February, 2001, and at a preliminary conference held on 14 March, 2001 Deputy President Sumner issued Directions for the conduct of these proceedings.

[7] The grantee party was invited on more than one occasion to attend Ngoonooru Wadjari  working group meetings.  Despite indications by the grantee that he would attend, this did not eventuate. As a consequence the determination of this objection was delayed slightly to give the grantee party and native title party time to meet.

[8] All parties indicated a desire that this matter be determined ‘on the papers’, and I have formed the view that the materials lodged with the Tribunal are sufficient to allow this course of action.

[9] All of the parties lodged with the Tribunal their contentions, although in the case of the grantee party concerns were raised by the Yamatji Land and Sea Council, as representative of the native title party that part of the grantee’s contentions (contained in a letter dated 28 July, 2001) consisted of an assertion without supporting evidence. With the exception of that part of the grantee’s contentions that deal with his intentions with respect to exploration activity (and the weight I place on these statements of present intention are outlined hereunder), I placed no weight on those statements of the grantee party which amounted to mere assertions without any evidentiary support.

[10] The material lodged by the government party indicates that the proposed exploration licence is for an area of approximately 3.08 square kilometres (308.22 ha), located 76 kilometres north east of Meekatharra in the Shire of Meekatharra.

[11] It would appear that the subject land is vested in the Shire of Meekatharra and is described as ‘common’.  In short the land over which the proposed exploration licence would be granted is a town common.  The subject land is comprised of Reserve 15111.  Furthermore, the material supplied by the government party also indicates that there are no Aboriginal communities within the vicinity of the proposed tenement and that there are no sites within this area entered on to the Aboriginal Sites Register pursuant to the Aboriginal Heritage Act 1972 (WA).

General Legal Principles

[12] The grantee party’s representative has made detailed submissions on the proper legal principles that should guide the Tribunal in this matter. I will deal with those which I believe are germane to this determination. It is relevant, firstly, to set out section 237 of the Act which is the key statutory provision in any expedited procedure inquiry:

‘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.’

[13] First, the native title party’s Statement of Contentions filed on 15 May, 2001 by Mr David Ritter, correctly state that the wording of section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences set out in paragraphs (a) – (c) of section 237. This matter was specifically dealt with by French J in Smith v Western Australia [2001] FCA 19 where His Honour said (at [23]):

‘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 to in pars (a), (b) and (c) conferred by the grant of the proposed tenement. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement….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 the kind contemplated by s237.’

[14] Mr Ritter then contended that a predictive assessment requires the Tribunal to have regard to the intentions of the grantee party.  In support of this contention Mr Ritter relied on the following observation of Professor Bartlett in his textbook Native Title in Australia (at page 384):

‘It is suggested that the adoption of a predictive assessment requires regard to the intention of the grantee party.  It is impossible to assess the likelihood of interference or major disturbance without such evidence.  The definition of an ‘act attracting the expedited procedure’ contemplates regard to any indirect effect of the act, including the manner in which rights may be exercised.  The intentions of the grantee party would seem to be a prime consideration in determining the manner in which rights will be exercised.’

[15] The government party relied on its previous submissions to the Tribunal in WO99/285, Wilma Freddie/State of Western Australia/Kim Robinson.  In those Submissions the government party argued that contrary to the impression of the Full Court in Dann v Western Australia (1997) 74 FCR 391, the Tribunal had to that time taken the view that the intentions of the grantee party were not relevant. The government party then outlined the following interpretation:

‘11. As the Tribunal has previously accepted, the reference in s237 to the ‘future act’ cannot be taken to be a reference merely to the grant of the mining tenement, since that could never cause interference or disturbance of the kind in s. 237. The Tribunal must necessarily look at the exercise of the rights conferred by the mining tenement. The question becomes then: in deciding whether the ‘future act’ is not likely to cause interference or disturbance of the kind in s.237, is the Tribunal:

(a)to assume the legal rights created by the grant of the tenement will be exercised to their full, and decide on that basis whether interference or disturbance is likely; or

(b)to decide how the rights created by the grant of the tenement are likely to be exercised, as part of its overall assessment of the likelihood of interference or disturbance?

1. The Government party submits that the approach in paragraph 11(b) above is now the proper approach.  The language of s.237(c) is more consistent with that interpretation.  There are two “limbs” to that subsection; the first (which is in similar terms to the other subsections of s.237) says ‘the act is not likely to involve major disturbance’, and the second directs inquiry as to whether the future act creates rights whose exercise is likely to involve major disturbance.  It is the second limb which requires the Tribunal to look at the rights created and decide whether the exercise of those rights would involve major disturbance.  It follows that in the first limb of s.237(c), and in ss237 (a) and (b), the Tribunal’s “predictive assessment” involves an assessment of what is likely to happen following the grant of the tenement.

2. The difficulties identified by Wilcox J in Dann (144 ALR 1 at 3 (line 45) – 4 (line 10)), with respect, are not that great.  If a grantee party cannot or will not present evidence of its intentions with respect to the tenement then the Tribunal will be entitled to draw an adverse inference against that party and assume that the rights conferred by the tenement will be fully exercised.  Similarly even if evidence of the grantee party’s intentions is presented, the Tribunal will be entitled to take into account in deciding what is likely to happen, that those plans may change.’

[16] In reality, the Tribunal had not prior to the Full Court’s decision in Dann’s Case ruled out the use of the intention of a grantee party in reaching a determination. Rather, the Tribunal had highlighted the limited value of such evidence, in other than exceptional circumstances.  In that regard, Deputy President Seaman clearly and succinctly outlined the Tribunal’s position in Re Inrruntyju-Papulankutja Community (1995) 1 AILR 222 (at 224):

‘I am of the view that, absent exceptional circumstances, the effect which the grant is likely to have is not to be judged by a consideration of the intentions and capacities of particular grantee parties but by the power of the government party to control the activities of a grantee party by existing legislation, conditions of grant and regulatory process and upon the basis that the grantee parties will act lawfully.’

[17] More recently Deputy President Franklyn in Western Australia/Derrick Smith & Ors on behalf of the Gnaala Karla Boodja People/Western Australia, WO99/511, 23 June 2000, exhaustively dealt with the proper approach of the Tribunal following the 1998 amendments to the Act.

[18] Deputy President Franklyn endorsed the above approach of Deputy President Seaman, namely that absent exceptional circumstances, the effect of a grant of an exploration licence is to be adjudged not by considering the present intentions of a grantee party but by the legal and regulatory superstructure that such a grant is subject to. But Deputy President Franklyn highlighted that there are exceptional circumstances that warrant having regard to the intentions of a grantee party.  He said (at pages 38-39):

‘However it cannot be fairly said, in my opinion, that evidence of intention can never be relevant to the predictive assessment.  The fact that the Grantee in this case expresses his present intentions as to the exercise of the rights gives rise to the likelihood that those rights will be exercised as a minimum to the intended extent but dependant on the results of the progressive exploration steps.  Further there may well be cases where the overall evidence gives rise to the likelihood that the expressed intentions will in fact be carried out.  The degree of likelihood in each case will vary with the circumstances as will the weight to be given to the evidence of intention.  It is probable that in many, if not most cases, the weight given will be negligible, if any is given at all.  That however does not mean that evidence of intention should always be ignored.  Logically it is relevant to likelihood.  For those reasons I am of the view that evidence of the Grantee’s intentions as to the exercise of the rights created by the grant is admissible but the weight (if any) to be given to that evidence will vary with the circumstances as the Tribunal finds them to be.’

[19]  In summary, the adoption of a predictive assessment allows the reception of evidence of a grantee’s intentions in certain circumstances.  However, such evidence will not always be relevant, and even when it is received it may be of only peripheral importance.  Far more significant is a consideration of the legal and regulatory regime operating in the relevant jurisdiction and those specific conditions that the proposed grant is subject to.  Certainly it would not be appropriate to subject a grantee party to a detailed examination of intentions as this could result in ‘a time consuming and costly business…it would be a strange way of providing an expedited process’ per Wilcox J, Dann v Western Australia (1997) 74 FCR 391 at 394.

[20] In this matter, Mr Ritter contended that as the grantee party had not, at the time that Mr Ritter’s contentions were lodged, submitted any indication of his intentions, it was open for the Tribunal to infer that the grantee does not intend to take any action to minimise the likelihood of the act in question having any of the consequences set out in paragraphs (a) –(c) of section 237.

[21] As it is, the Tribunal did receive from the grantee party some evidence as to his intentions.  In a letter dated 28 July, 2001 the grantee said: ‘the program of exploration will be confined to soil sampling, use of aerial maps and aeromagnetic data, and if encouraging possible follow up drilling.’

[22] This statement of present intentions is of very little assistance to the Tribunal in carrying out a predictive assessment. It highlights the potentially minimal value of such material.  All that it indicates is that the grantee’s present intentions are limited to extremely low impact activity which may result in higher impact activity should the initial exploration activities prove fruitful.  In short the current intention of the grantee is dependent on the outcome of progressive exploration stages, none of which can be sensibly predicted at this juncture.

[23] However, even if the grantee party had not submitted any material, I do not think it would be open to the Tribunal to draw inferences of the kind suggested by Mr Ritter.

[24] The Tribunal has consistently applied in these inquiries a presumption of regularity. By that it is assumed that a grantee party will act lawfully, and in exercising the rights given by the licence, will act in accordance with the various laws and regulations in force at any given time and in accordance with any conditions the licence is subject to. Prima facie, even assuming that a grantee will fully exercise the rights conferred by a tenement, that does not necessarily and logically result in the Tribunal automatically inferring that the grantee would not take any action to minimise the effect of the act having the type of consequences set out in paragraphs (a) to (c) of section 237. The nature of the inquiry required of the Tribunal in carrying out a predictive assessment is more complex than that, and accordingly I am not persuaded by Mr Ritter’s contentions, to draw an adverse inference of the type suggested.

[25] Mr Ritter outlined three matters which he contended should lead the Tribunal to draw this inference. One was the failure of the grantee to provide any indication of his intentions (which he has subsequently done) and another was that the grantee had not agreed to participate in an aboriginal heritage survey of the subject area.

[26] The Tribunal also received an Affidavit from Nicholas Paul Green who is the Director of Research of the Yamatji Land and Sea Council (“YLSC”). He deposed that it is the general practice of objectors to instruct YLSC to lodge objections to the application of the expedited procedure on their behalf. He also deposed that it is the general practice of objectors to instruct YLSC to “lift” an objection once a grantee party has agreed to fund and facilitate an Aboriginal heritage survey of the tenement area.

[27] Clearly there is no statutory or legal obligation on a grantee party to fund or facilitate an Aboriginal heritage survey – see Deputy President Franklyn Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resources NL, WO00/93, 18 May, 2001 at [9].  Whilst it would be preferable that such a survey be conducted, and in this instance the absence of such a survey has, apparently, had the unfortunate repercussion of this matter resulting in a full inquiry, I am not prepared to draw any adverse inferences from the failure of the grantee to participate in such an exercise.

[28] The last matter of general principle I will deal with in the interpretation of section 237 concerns the proper approach to the term “likely”.  In Smith v Western Australia [2001] FCA 19, French J highlighted that the Act is beneficial and that the right to negotiate regime is part of the overall statutory scheme for the protection of native title rights and interests. That protection is not to be construed narrowly. His Honour said (at [23]):

‘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 the kind contemplated by s.237.’

Section 237(a) – Interference with community or social activities

[29] The government party contended that the grant of the proposed tenement would not be likely to directly interfere with the carrying on of the community and social activities of the objectors.  Two reasons were advanced for this contention.  The first was that there are no Aboriginal communities situated on, or in the vicinity of the proposed tenement.  The second related to the legal position surrounding reserves.  The following reasons were outlined in the Statement of Contentions of the government party dated 30

April, 2001:

‘(b)in relation to the land the subject of Reserve 15111, section 24 of the Mining Act 1978 provides that mining on reserve land requires the written consent of the Minister for Mines who may refuse his consent or give his consent subject to such terms and conditions as specified in the consent.

(c)before giving his consent the Minister must, pursuant to subsections 24(3) – 24(7) of the Mining Act, consult with and obtain either the concurrence or the recommendation of the Responsible Minister or the Responsible Minister and the body or person in which the control and management of the reserve is vested.

(d)Section 26 of the Mining Act provides for terms and conditions that may be imposed pursuant to section 24 of the Mining Act by the Minister for Mines on the consent for mining; and

(e)Section 63 of the Mining Act 1978 deems every tenement of the type proposed to be granted subject to the holder fulfilling certain conditions set out in the said section, i.e. reporting discoveries of minerals, making safe any holes, pits, trenches, etc, and preventing damage to property and livestock’.

[30] The native title party argued that the term ‘community and social activities’ in section 237(a) should be construed as including not just physical activities but also activities with a spiritual dimension. Reference was made to dicta of Carr J in Ward v Western Australia (1996) 69 FCR 208.

[31] The following comments appear in the Statement of Contentions of Objectors lodged by Mr David Ritter on 15 May, 2001:

‘13. The grant of E51/887, without clearance from the objectors is likely to cause spiritual and emotional distress thereby interfering directly with the carrying on of the community and social activities of the objectors.  The act is likely to directly interfere with the carrying on of the community and social activities of the objectors in a non-physical sense, in addition to any direct physical interference that may occur.

1. The activities of the grantee party will impact negatively upon the flora and fauna in the area and will thereby interfere directly with the carrying on of the community and social activities of the objectors, namely hunting, gathering and associated activities.’

[32] The issue whether section 237(a) requires an investigation into activities with a spiritual dimension has been discussed by Deputy President Franklyn in a number of determinations commencing with State of Western Australia/Derrick Smith & Ors on behalf of the Gnaala Boodja People/South Coast Metals, WO99/511, 23 June 2000. Deputy President Franklyn has consistently determined that: ‘the section has been amended since the decision of Carr J and is no longer directed to direct interference with ‘community life’ but to possible interference ‘directly with the carrying on of community or social activities’….to be relevant interference under section 237(a), the act must be one likely to interfere directly with the physical aspects of the carrying of community or social activities of the native title holder’ – Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resources NL, WO00/93, 18 May 2001 at [8]. This view was most recently endorsed by Member Stuckey-Clarke in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO00/92, 25 June 2001 – at [21].

[33] Professor Bartlett has argued in his textbook Native Title in Australia that the difference between the pre 1998 wording of section 237(a) (interference with community life) and the current wording (interference with the carrying on of community and social activities) is “slim” and that the approach of Carr J in Ward is “largely unaffected by the amendment” – at page 386. 

[34] As it happens I do not believe that I have to express a view on the matter based on the paucity of material before me. The only point I do make is that this issue was not resolved by French J in Smith v Western Australia  [2001] FCA 19. His Honour, while setting out the legislative process in 1997 and 1998 which finally resulted in the form of words now appearing in paragraph (a), does not deal explicitly with this issue – see [19] –[22].

[35] The native title party has not contradicted the government party’s contention that there is no Aboriginal community in the vicinity of the proposed tenement. Moreover, the evidence adduced by the native title party is extremely general and non-specific. There are no particulars of the community and social activities that the act is likely to interfere with.  All that is submitted are statements of generalities that contain no useful information about the frequency or type of community or social activities or the importance of the area of the proposed tenement in this regard.  Even if Mr Ritter’s contentions about the interpretation of paragraph (a) were correct (and on this point, I specifically make no comment), there is insufficient material that would allow a Tribunal to reach a considered decision.

[36]  While the Tribunal has before it material submitted on behalf of the native title party, there is absolutely nothing before the Tribunal deposed by any of the objectors personally.  While I have not formed any adverse view about this, it is less than helpful when objectors choose not to place before a Member any direct evidence and rely solely instead on evidence submitted by their representatives.

[37]  In the circumstances, I am of the view that there is insufficient material adduced by the objectors for any holding that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of the holders of native title on the land comprising the proposed tenement.

Section 237(b) – Sites of particular significance

[38] The government party contended that the grant of the proposed tenement would not be likely to interfere with areas or sites of particular significance for the following reasons:

(a)   the Aboriginal Heritage Act 1972 applies to the land, and provides protection for Aboriginal areas or sites as defined in section 5, of particular significance on the land;

(b) section 18 of the Aboriginal Heritage Act 1972 provides that the grantee party must have the consent of the Minister before using the land for any purpose which would result in a breach of section 17.  Section 17 makes it an offence, inter alia, to excavate, destroy, damage or conceal or in any way alter any Aboriginal site or any object on or under an Aboriginal site;

(c)   the grant of the proposed tenement will include an endorsement that the grantee party’s attention be drawn to the provisions of the Aboriginal Heritage Act.

[39] Mr Green in his Affidavit deposed that on the basis of his experience as Director of Research it was unlikely that the register of Aboriginal sites for the area would be an accurate record of all the sites of significance within the area of the proposed tenement (at paragraph 7). He deposed that registered sites in a locality may convey the impression that the whole area had been surveyed, whereas the recording of sites usually flows from surveys relating to mining developments, road widening or power line installation.  As a result the recording of sites in any given area is not likely to be complete (at paragraph 8). He also deposed that ‘the land in question contains such sites of particular significance’ (paragraph 12).

[40] Mr Ritter in the Statement of Contentions of Objectors deposed that without proper Aboriginal heritage site avoidance procedures taken, it would be likely that any activity permitted by the granting of the tenement would impact negatively on the sites as well as the area in general (at paragraph 16). In addition, the following submissions were also made:

‘ 17. The protection afforded by section 17 of the (WA) Aboriginal Heritage Act 1972 covers only sites under the terms of that Act. The mechanisms set out in that Act which provide that the grantee party must have the consent of the Minister before using the land for any purpose which would result in a breach of section 17 of that Act, do not require that any holders of native title be consulted,

1. The (WA) Aboriginal Heritage Act 1972 gives the Minister power to override the protections otherwise afforded by the Act by consenting to the damage or destruction of sites of significance. That Act therefore cannot be relied on to provide protection for sites.

2. The protection against interference provided by legislation such as the (WA) Aboriginal Heritage Act 1972 is only to be given such weight as the Tribunal considers appropriate in the circumstances of the case before it.  The existence of legislation such as the (WA) Aboriginal Heritage Act 1972 does not require the NNTT to conclude that the prospect of interference to a site of significance is removed by the application of a presumption that the law will be observed by the grantee party: Ware v State of Western Australia & Anor, supra at 24.

3. The Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers, issued by the Department of Minerals and Energy to tenement applicants, are advisory only and are inadequate to protect the rights and interests of native title holders.’

[41] The contention of the native title party that the Register of Aboriginal Sites is not exhaustive is accepted.  The fact that the Register may not record all Aboriginal sites of significance in the area of a proposed tenement is clear from a reading of the legislation and a commonsense approach to how the statute operates.

[42] Accepting then, that the Register does not provide a comprehensive picture of sites of significance, the issue then is whether the native title party can assist the Tribunal in identifying areas or sites of particular significance to native title holders. It is important to highlight that the Act requires that there be sites or areas of particular significance.  This was explained by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 21 (at 34-35) as follows: ‘It is not enough that the site simply be of significance to the native title holders…..The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.’

[43] In this case there are no sites registered under the Aboriginal Heritage Act 1972 in the area of the proposed tenement.  Moreover the native title party has not identified any sites or areas of particular significance.  The absence of any such information could lead to an inference that the native title party is unaware of any such site or area of particular significance on the proposed tenement.

[44] The inquiry demanded of the Tribunal under paragraph (b) is whether there is an area or site of particular significance to native title holders in accordance with their traditions which the proposed future act is likely to interfere with.  It is not to the point for an objector to highlight that the Register of Aboriginal Sites is not exhaustive and that sites of significance may well exist on the proposed tenement.

[45] In my opinion it is a condition precedent for an inquiry under paragraph (b) that an objector bring to the attention of the Tribunal an area or site which it is alleged is of particular significance within the meaning of the Act. In the absence of such material the Tribunal would be left undertaking a speculative exercise based on generalities and suppositions.

[46] As pointed out above, Mr Ritter has raised a number of interesting contentions about the weight that the Tribunal should place on the protection that the Aboriginal Heritage Act 1972 offers to sites or areas of particular significance.  I dealt with this issue in Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd WO00/402, 7 June 2001 and concluded that the Aboriginal Heritage Act 1972 does not cover the field of interference for the purposes of section 237(b). However, these arguments are predicated on there being material before the Tribunal to the effect that there is or are areas or sites of particular significance. In this inquiry there is no such material.

[47] Consequently, there is no evidence before the Tribunal that there are any areas or sites of particular significance on the proposed tenement

Section 237 (c) – major disturbance to land or waters

[48] The government party contended that the grant of the proposed tenement would not be likely to involve major disturbance to the land or create rights whose exercise is likely to involve major disturbance to the land, as the grantee party, acting lawfully in the exercise of the rights given by the proposed tenement, will not cause a physical disturbance to the land which constitutes a major disturbance by the standards of the whole Australian community.

[49] Mr Ritter deposed, inter alia, in the Statement of Contentions filed on 15 May 2001 that the granting of an exploration licence under the Mining Act 1978 (WA) would permit major disturbance to land (para 25). He further deposed that this legislation contains no provision for consultation with native title holders with respect to the extent or impact of the grantee party’s activities (para 26). As a consequence the objector contended that the grant of the exploration licence without any guaranteed referral to or consultation with native title holders would amount to a major disturbance to the land (para 27).

[50] The Tribunal also was provided with an Affidavit by Cedric Stileman Davies of 6 July 2001. Mr Davies is an employee of YLSC and is a professionally qualified geologist. The tenor of Mr Davies affidavit was the grant of the proposed tenement will create rights whose exercise is likely to result in major disturbance. In particular Mr Davies set out in a detailed manner the impact of the following activities which it was said would be permitted if the tenement is granted:

(a)   reverse circulation drilling in areas of hypersaline groundwater;

(b)   diamond (core) drilling; and

(c)   the excavation of up to 1,000 tonnes of material.

[51] Photographs were annexed to this Affidavit showing the extent of environmental degradation caused by the ejection of hypersaline groundwater during drilling in the Cuddingwarra resource area near Cue in the Murchinson District of Western Australia.

[52] Whether the same environmental conditions prevail in the area of the proposed tenement is not addressed, nor does Mr Davies specify whether the same conditions pertaining to the proposed tenement applied to the tenement (Mining Lease M20/252 – Black Swan South) the subject of the photographs.

[53] It would appear that Deputy President Franklyn considered a similar Affidavit of Mr Davies in another inquiry – Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resources NL WO00/93, 18 May 2001.  While Deputy President Franklyn accepted that Mr Davies was experienced, capable and had expertise in his professional field, he made the following observation (at [9]):

‘The relevant question under section 237(c) is whether the exercise of the rights conferred by the proposed tenement is likely to involve major disturbance from the viewpoint of the community generally, taking into account the concerns of the Aboriginal community. (Dann v Western Australia (1997) 74 FCR 391). It is not to be answered by the expert opinion of a geologist, no matter how well qualified in his field, as to what disturbance may result, but by the circumstances and evidence adduced.’

[54] In addition to Mr Davies Affidavit, a Statement of Further Contentions of Objectors was filed on 6 July 2001 by Mr Ritter.  In this Affidavit Mr Ritter outlined various legal reasons why the grant of E51/887 would create rights, the exercise of which, would involve major disturbance to the land.  Mr Ritter specifically dealt with the conditions 1 to 4 of the State’s Schedule of Conditions. He raised questions concerning the ambiguity in the standard of rehabilitation to satisfy the District Mining Engineer (condition 2) and the level of assessment employed by the District Mining Engineer in deciding whether ground disturbance may be permitted (condition 4).

[55] Mr Ritter highlighted that the conditions relate to repairing damage after the event, and quite correctly, in my opinion, brought to the attention of the Tribunal the fact that the eventual repair of exploration activities does not mean that the original disturbance may not be major.  In that regard he contended that the removal of 1,000 tonnes of material, is likely to involve a major disturbance to land irrespective of any proposed rehabilitation.

[56] While not an exhaustive summary of Mr Ritter’s contentions, they are sufficient to highlight their general tenor.

[57] If those contentions had been supplemented by actual evidence of objectors or evidence specific to the proposed tenement they would have been of considerable assistance to the Tribunal.  As it is, however, the Tribunal has been presented with no original evidence at all.  The Tribunal has not been presented with specific material relating to the area of the proposed tenement (ie. whether there are any geological, environmental or other factors that could be said pose a real risk of major disturbance should exploration activities occur), or aboriginal communities in the vicinity of the proposed tenement or the specific concerns of native title holders themselves on how the exploration activity will impact on their life, customs or traditions.

[58] In early decisions of the Tribunal, prior to the 1998 amendments but when the predictive assessment was still regarded as good law, the general approach to paragraph (c) was summed as follows:

‘The Tribunal has found in other matters that the activities generally permitted by an exploration licence with the conditions imposed are not such as to cause major disturbance by the standards of the ordinary community.  That is mineral exploration is limited in its purpose and of low impact density in its disturbance to land, particularly given the wide area of land over which the grants operate.

Although in this case there are Aboriginal communities in closer proximity to the exploration licence than in other matters, I do not think that the evidence leads to the conclusion that there is likely to be major disturbance to land.’

Member Sumner,  Ben Ward & Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd, WO95/34, 29 February 1996 at page 24.

That is not to say that the Tribunal as any general rule found that exploration activities did not result in major disturbance to land or waters. For example, the Tribunal found that where a causeway was to be constructed over lakes to allow the movement of drilling equipment, this constituted a major disturbance – see Re Tjupan Peoples (1996) 134 FLR 462 at 476 per Member O’Neil. Likewise the Tribunal found that the clearing of seismic lines by bulldozers over many kilometres of State forest would constitute a major disturbance such that the grant of petroleum exploration permits did not attract the expedited procedure – see Re Nyungah People (1996) 132 FLR 54 per Deputy President Seaman.

[59] After the Full Court decision in Dann, the Tribunal in approaching its task pursuant to paragraph (c) has evaluated whether major disturbance has occurred from the viewpoint of the general community, but taking into regard its effect on local people. In that regard the concerns of Aboriginal people in the locality are important, and the Tribunal has regard to ‘matters such as community life, customs, traditions and cultural concerns.’Dann v Western Australia (1997) 74 FCR 391 at 401 per Tamberlin J.

[60] The only evidence of any general assistance in this regard is the Affidavit of Mr Green who sets out in a very general sense certain beliefs of the Ngoonooru Waadjari People.  While the Tribunal has before it legal contentions by Mr Ritter and general geological material from Mr Davies, in reality the material does not provide much assistance to the Tribunal in its first task in this regard, namely evaluating the impact of the proposed exploration activity on the relevant land and waters from the viewpoint of the local people.

[61] The government party has submitted its standard material on the steps it will put in place to ensure that there is not major disturbance.  There is no specific evidence of any sensitive geological or environmental matters in the area of the proposed tenement.  There is no evidence of any Aboriginal people in the immediate vicinity.  There is no direct evidence of the specific concerns of the objectors with respect to major disturbance.  There is no evidence of anything other than standard exploration activities that will occur.  There is no evidence of the type of works that were considered by the Tribunal (for example) in Re Nyungah or Re Tjupan.

[62] Basically all that I have before me is evidence of fairly standard exploration activity over a relatively small area of land in a remote locality of Western Australia and with no direct material from any of the objectors.  This does not provide a firm platform for a finding of major disturbance as suggested by the objectors, despite the superstructure of impressive legal contentions.

[63] It is clear that a native title party has no obligation to make out a case that an act does not attract the expedited procedure (cf earlier determinations to the contrary -  Re Nyungah People (1996) 132 FLR 54). Rather, as Carr J explained in Ward v Western Australia (1996) 69 FCR 208 (at 217): ‘No burden of proof, nor for that matter any evidential burden of a legal nature, lies on any party to proceedings before the Tribunal inquiring into the matters referred to in section 237.’  The Tribunal adopts a common sense approach to evidence, but if facts are peculiarly within the knowledge of a party, and no evidence is adduced, then it is open to the Tribunal to form an adverse inference (see Carr J at page 217).

[64] I am unable to find, on the evidence before me, that the grant of the tenement would be 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.

Determination

The determination of the Tribunal is that grant of Exploration Licence 51/887 to Allan Neville Brosnan is an act which attracts the expedited procedure under the Native Title Act 1993.

John Sosso

Member