Leone Velickovic/Western Australia/Royce William Allen
[2000] NNTTA 347
•10 November 2000
| NATIONAL NATIVE TITLE TRIBUNAL |
Leone Velickovic/Western Australia/Royce William Allen, [2000] NNTTA 347 (10 November 2000)
| Application No: WO00/184 |
| IN THE MATTER of the Native Title Act 1993 (Cth) |
| - and - |
| IN THE MATTER of an inquiry into an expedited procedure objection application |
| Leone Velickovic (native title party) |
| - and - |
| The State of Western Australia (Government party) |
| - and - |
| Royce William Allen (grantee party) |
| REASONS FOR A DETERMINATION |
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 10 November 2000
Catchwords: Native Title – future act – expedited procedure objection application – evidence sufficient to prevent conclusion that the grant is not likely to interfere directly with relevant community or social activities – objection upheld.
Legislation:Native Title Act 1993 (Cth) s 237, Aboriginal Heritage Act 1972 (WA), Mining Act 1978 (WA).
Background
On or about 24 January 2000 the State of Western Australia (the State) issued a notice under s 29 of the Native Title Act 1993 (the Act) of its intention to grant to Royce William Allen (the grantee) Prospecting Licence 15/4299 comprising 194.74 ha situate 21 km north-westerly of Widgiemooltha (the proposed tenement), including in the notice a statement that it considered the grant to attract the expedited procedure.
On 25 January 2000, Leonie Velickovic (the objector), a claimant in native title application WC98/27, lodged an objection to the inclusion of that statement in such notice on the grounds that the grant;
(a)will directly interfere with the community life of the native title holders;
(b)will interfere with areas or sites of particular significance;
(c)will involve disturbance of the land and waters concerned; and
(d)will interfere with the native title holders’ enjoyment of their customs and access to their enjoyment of the resources of the land and waters.
The said grounds (a), (b), and (c) can be seen to be objections grounded in s 237 of the Act. Ground (d), however, does not fall under the section and is not a ground which, unless it can be said to fall within either ground (a), (b) or (c), would disqualify the grant from being an act attracting the expedited procedure.
At a directions hearing on 13 October 2000, it was agreed by the parties that the question whether the said grant is an act attracting the expedited procedure should be determined on the documents and other material lodged with the Tribunal by the parties. The Tribunal is satisfied that it can be adequately determined in their absence.
Contentions and Evidence – The State
The documents lodged by the State and made available to the other parties reveal the proposed tenement to be situated on unallocated Crown Land and there to be no Aboriginal communities or any registered Aboriginal site on or within its vicinity. Further, that the licence proposed to be issued will carry an endorsement drawing the grantee’s attention to the provisions of the Aboriginal Heritage Act 1972 (WA) (the AHA) and be subject to itemised conditions requiring (relevantly) surface holes drilled to be capped, filled or otherwise made safe after completion; all costeans and other disturbances to the surface of the land made as a result of exploration to be backfilled and restored to the satisfaction of the Department of Mines’ District Mining Engineer (the DME) within six months of excavation unless otherwise approved by him; all rubbish etc, abandoned equipment and temporary buildings to be removed prior to or on termination of the exploration program; the use of mechanised equipment for surface disturbance or the excavation of costeans prohibited unless approved by the DME and, in the event of approval being obtained, all topsoil removed to be stockpiled for replacement after back-filling/completion of operations. The State’s contentions point out (inter alia) that s 46 of the Mining Act 1978 (WA), imposes additional conditions on the grant of every prospecting licence requiring the prompt reporting to the Minister of Mines of mineral discoveries, the rehabilitation and making safe of all holes, pits, trenches and other disturbances to the land made whilst prospecting which, in the opinion of the State Mining Engineer, are likely to endanger the safety of any person or animal, and the taking of all necessary steps to prevent fire, damage to trees, other property and livestock. The contentions also draw attention to the AHA, which makes provision for the protection of Aboriginal places and sites as defined in s 5 of that Act and, specifically, to s 17, which makes it an offence to excavate, damage, conceal or alter any Aboriginal site or anything on or under it without the consent of the Minister for Aboriginal Affairs and s 18 which sets out the procedure for obtaining such consent. Such procedure requires, inter alia, notice to be given to the Minister for Aboriginal Affairs of any proposed use “likely to result in a breach of s 17 in respect of any Aboriginal site that might be on the land”, the formation of an opinion by the Aboriginal Cultural Material Committee (established under the AHA s 28) as to whether there is an Aboriginal site on the land, and its recommendation to the Minister as to whether he should consent to the proposed use and as to conditions he should apply.
Contentions and Evidence – the Objector
The objector’s contentions are extensive. They identify the objection as having been lodged on behalf of the Widji people and, to a substantial extent, are directed to issues relevant to the establishment of native title over the area the subject of the native title application WC98/97. They refer to the significance and use of that claim area to and by the Widji people, to their concern that the grant may result in damage to the land and to likely interference with their rights and interests. They also refer to the need for consultation and agreement as to any proposed use. They claim that sites of significance are contained within all land within the native title claim and that sites of significance due to the paths travelled by ancestral beings are of particular significance, as they confirm the existence of such beings who created the landscape. The subject matter of the present enquiry, however, is whether the grant of the proposed tenement is “an act attracting the expedited procedure” as defined in s 237. That section 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 or 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.”
The contentions address s 237 as follows:
“(a) The Act is thus likely to interfere direction 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 its ability to freely access the area and enjoy its 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. Prospecting and exploration activities may extend to utilising water, thus denying access to this usually available resource.
(iii) Interfere 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 mineralisation in the area of a site it is more likely than not that the permission to interfere with a site (a sec 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.
(c) Major disturbance will occur based upon rights granted or exercised
(i) The activities allowed pursuant to the license are such as will involve major disturbance to land. The remedial action to rectify damage caused as a result of exploration will not remedy the damage to permanent loss of native title, and is likely to lead to permanent alteration of the incidence of native title in the area – possibly with the extinction of some incidence of flora and fauna in the area.”
In support of his objection, the objector lodged an affidavit made on 22 September 2000. Its content is, word for word, identical to affidavits made by him and lodged in support of objections made by him in each of WO00/172, WO00/136, WO00/203, WO00/220 and WO00/231, each of which is in respect of the proposed grant of a mining tenement on land the subject of WC98/27. In no such case does the affidavit specifically identify the proposed grant the subject of the objection, referring to it only as “the area applied for by the grantee party”. That such is the case, of course, does not reflect on the veracity of the affidavits but does suggest a somewhat global approach to objections rather than one focusing on the land the subject of the particular proposed tenement. However, there is no challenge to the content of the affidavit and no application for leave to cross examine the objector was made. Consequently, I accept it as providing evidence relevant to the land the subject of the proposed tenement where it purports to do so.
Relevantly, the affidavit deposes that the objector, throughout his lifetime, with others of the claimant group, has regularly travelled, camped and hunted throughout the area of the proposed tenement and regularly travels there to procure materials for spears, artefacts and utensils for hunting and gathering of food, medicine and resources for ritual decoration. In my view, this is evidence of relevant community or social activities which might well be directly interfered with by the exercise of the rights which the proposed grant would confer. As to “sites” the affidavit falls short of evidence of sites of particular significance on or in the vicinity of the proposed tenements, referring instead in general terms to places and sites of significance within the claimed area. In my opinion, the allegation that the whole of the land the subject of the native claim has sites of significance, some of which have “particular significance”, is insufficient to identify any such as being an area or site of particular significance within the meaning of s 237(b) likely to be interfered with by the grant or the exercise of the rights thereby conferred.
Contentions and Evidence – the Grantee
Despite directions made on 22 June 2000 requiring the grantee to lodge and serve, on or before 5 September 2000, any contentions, documents and statements of evidence on which he relied, he elected not to do so. At the directions hearing on 13 October 2000, a Mr Everett, who, with the grantee’s son Mr Kenneth Allen, represented the grantee on that occasion, offered to provide evidence of the grantee’s intentions in respect of the proposed grant if that would avoid an adjournment. As the grantee had elected not to comply with the directions made and as, in my view, evidence of his present intentions could not be properly given by his representative and would, in any event, be of little weight, the offer was refused. Mr Everett then advised that he had no objection to a hearing on the papers.
Conclusions
For the grant to be one attracting the expedited procedure, it must satisfy each of the criteria provided by s 237(a), (b), (c). In my opinion, it fails to satisfy the requirement of s 237(a). In interpreting the provisions of s 237 I give to the word “likely”, as used throughout it in the expression “is not likely”, the meaning of a “real or not remote chance or possibility, regardless of whether it is less or more than 50%”. State of Western Australia v Derrick Smith & Ors on behalf of the Gnaala Karla Boodja people – WO99/511, Deputy President E M Franklyn, unreported, delivered 23 June 2000. There is acceptable evidence from the objector, identified above, of the carrying on of community or social activities of the persons who are the holders of native title in respect of the land the subject of the proposed tenement such that it cannot be fairly said that the exercise of the rights that would be conferred by the grant would not be likely to interfere directly with the carrying on of such activities. Having so found, it is not necessary to further consider the application of s 237(b) and (c).
Determination
The Tribunal finds that the grant of Prospecting Licence P15/4299 is not an act attracting the expedited procedure.
E M Franklyn QC
Deputy President
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