Leonne Velickovic on behalf of the Widji Goldfields People/Western Australia/Hayes Mining Pty Ltd

[2005] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji Goldfields People/Western Australia/Hayes Mining Pty Ltd, [2005] NNTTA 17 (24 March 2005)

Application No:        WO04/202

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Leonne Velickovic on behalf of the Widji People – WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Hayes Mining Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date:  24 March 2005 (Corrigendum dated 19 July 2005)

CORRIGENDUM

Correction to the Expedited Procedure Objection Application Determination made on 24 March 2005 under ‘Evidence in relation to the proposed act’ –– page 5 on the basis that tenures Grazing lease (GE1126312) and  Reserve 17462 were referred to in error do not underlie the subject tenements, P16/2251 and P16/2252.

• Paragraph [10] –  is corrected to read as follows:

1. The Government party documentation reveals the area of land subject to the proposed licences to be wholly within pastoral leasehold (3114/1222- Mt Burgess Station) held by Centaur Mining & Exploration and Mt Kersey Mining NL.

The Hon C J Sumner
Deputy President
19 July 2005

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji Goldfields People/Western Australia/Hayes Mining Pty Ltd, [2005] NNTTA 17 (24 March 2005)

Application No:        WO04/202

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Leonne Velickovic on behalf of the Widji People – WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Hayes Mining Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date:  24 March 2005

Catchwords:             Native title – future act – proposed grant of prospecting licences –expedited procedure objection application – direct interference with carrying on of community or social activities unlikely – interference with sites of particular significance unlikely – major disturbance to land unlikely – act attracts the expedited procedure.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 151(2), 237

Mining Act 1978 (WA) ss 57(4), 66

Cases:Cheinmora v StrikerResources NL (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner

Leonne Velickovic on behalf of the Widji People/Western Australia/Scotia Nickel Ltd, NNTT WO03/566, [2005] NNTTA 14 (19 March 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

Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54

Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398

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

Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO03/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Representative of the

native title party:            Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

Government party:         Messrs Clyde Lannan and Greg Abbott, Department of Industry & Resources

Representative of the
grantee party:                 Mr Nathan McMahon, Cazaly Resources Limited

REASONS FOR DETERMINATION

Background

1. On 28 July 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P16/2251 and P16/2252 (‘the proposed licences’) to Hayes Mining Pty Ltd (‘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 (that is, are future acts which can be done without the normal negotiations required by s 31 of the Act).

2. On 16 August 2004 Leonne Velickovic, a named applicant and representative of the Widji People (‘the native title party’) lodged an expedited procedure objection application with the Tribunal, relying on all three limbs of s 237 of the Act. The native title party’s application for a determination of native title (WC98/27) was entered on the Register of Native Title Claims from 15 June 1998.

3. On 29 July 2004 the Central West Goldfields native title party also lodged expedited procedure objection applications with the Tribunal in relation to the proposed licences (WO04/170 and WO04/171).  This objection was withdrawn on 15 November 2004 following agreement being reached between the native title party and the grantee party. 

4. The area, location and extent to which the proposed licences overlap the registered native title claim is as follows:

• P16/2251 – 202.33 hectares, 48 kilometres north west of Kalgoorlie in the City of Kalgoorlie-Boulder and Shire of Coolgardie; 100% overlap.

• P16/2252 – 199.98 hectares, 48 kilometres north west of Kalgoorlie in the City of Kalgoorlie-Boulder and Shire of Coolgardie; 100% overlap.

Conduct of the inquiry

1. Pursuant to standard directions made by the Tribunal the Government party has provided contentions and evidence on which it relies and the Widji native title party has provided a Statement of Contentions signed by its representative Mr Jerome Frewen.  The grantee party relies on the Government party’s contentions.

1. On 25 February 2005 I convened a Listing Hearing during which I pointed out that as only contentions signed by the native title party’s representative and no documentary evidence had been submitted on behalf of the native title party, there had not been compliance with the Tribunal’s Directions and therefore the objection was vulnerable to dismissal pursuant to s 148(b) of the Act. However, the contentions did provide some information as to the nature and location of Aboriginal sites in the vicinity of the proposed licence and I decided that the matter should be determined on the basis of this material (see Leonne Velickovic on behalf of the Widji People/Western Australia/Scotia Nickel Ltd, NNTT WO03/566, [2005] NNTTA 14 (19 March 2005), Hon C J Sumner). I am also satisfied that I can adequately deal with the matter 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 an exploration licence 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.

The Regional Standard Heritage Agreement (RSHA)

1. Throughout the preliminary proceedings the grantee party maintained that it had followed the Government party’s procedures relating to the RSHA by executing one and forwarding it to the Central West Goldfields native title party (these procedures have been explained 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 (‘Linda Champion’) at [15]-[35]).  In any event I can infer that the native title party and grantee party have entered into the Central West Alternative Heritage Agreement (‘CWAHA’) which led to the withdrawal of the Central West Goldfields objection.  There is a binding agreement between the Central West Goldfields native title party and grantee party which can be taken into account in determining this matter.  With respect to the Widji native title party the RSHA can only be considered relevant in the way set out in Linda Champion (at [29]-[35]).  In short, the RSHA is evidence of the grantee party’s intention regarding the protection of sites of significance and preparedness to enter into an agreement for a heritage survey with one of the native title parties but is not a binding agreement with respect to the Widji native title party.

Evidence in relation to the proposed act

1. The Government party documentation reveals the area of land subject to the proposed licence to be:

• Pastoral leasehold (3114/1222- Mt Burgess Station) held by Centaur Mining & Exploration and Mt Kersey Mining NL;

• Grazing lease (GE1126312) also held by Centaur Mining & Exploration and Mt Kersey Mining NL; and

• Reserve 17462 – designated ‘Government requirements’.

1. There are neither Aboriginal communities nor sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) within or in the immediate vicinity of the proposed licence.

2. The ‘Quick Appraisal’ documentation from Tengraph shows an extensive history of exploration and interest in the area of the proposed licences and that adjacent to it. Indeed, there is little land within a 10km radius of the proposed licence that is not encompassed by past, active or pending tenements and the Department of Industry and Resources ‘Quick Appraisal’ data indicates that the entire area of the proposed licences is subject to a Ministerial declaration under s 57(4) of the Mining Act 1978 which prohibits the making or grant of an exploration licence on the basis that extensive mining is being carried out. More specifically, eight dead prospecting licences and two dead miscellaneous licences are listed that overlap the proposed licences to varying degrees.

3. My findings based on this history of the previous grant of mining and exploration tenements is that there has been considerable exploration and sustained mining activity over and adjacent to the area of the proposed licence.

4. The grant of the proposed licence will be subject to the standard endorsements and conditions applicable to all prospecting licences in Western Australia and set out in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner at [16].

5. On 18 February 2005 the Government party advised that the following additional condition will be imposed on the grant of the proposed licences in this matter:

   ‘The Licensee, if so requested in writing by the Central West Goldfields People, the applicants in Federal Court application no. WAG65 of 1998 (WC99/29), such request being sent by pre-paid post to reach the Licensee’s address (c/o Cazaly Resources, PO Box 396, West Perth WA 6872) not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Central West Goldfields People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’

Community or social activities (s 237(a))

1. For the objection 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.

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act and conditions to be imposed for prospecting licences detailed in Walley at [24]-[37] to contend that there is not likely to be direct interference with the carrying on of community and social activities (s 237(a)) by the native title party in relation to the area of land concerned.

3. The native title party’s contentions (paras 3.1 and 3.2) say that ‘[s]ince the late 1800s Aboriginal people, including ancestors of the Widji Group, have lived and worked in the vicinity of the tenements’ citing the objector’s grand parents, who were ‘head pastoral workers on that station [Black Flag Station] before they moved to Credo Station’ as an example. The native title party further contends that it has been the objectors’ custom ‘to visit the general area of Balgarri and Black Flag Lake to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements’.  It is then said that exploration will lead to ‘large areas’ of traditional land being closed off and that there will be evacuation of wild game and destruction of vegetable food and fruits.  The contentions further say that elders of the claimant group ‘have been accustomed to bring young group members and other children regularly to the Balgarri and Black Flag Lake area for the purpose of instructing them’.  The contentions then give an example of this activity by reference to Mr Velickvic being brought to the area by key older relatives, including his grand parents and uncles.  This evidence suggests that this activity occurred in the past as there is no specific reference to contemporary activity of this kind. 

4. There is no more specific evidence provided of community and social activities of the native title party and the information provided in the contentions is very general in terms of its nature, frequency or the number of people involved.  It also appears that any activities are not restricted entirely to the area of the proposed licences as, according to mapping documentation, the proposed licences are approximately two kilometres west of Balgarri and approximately 20 kilometres north-west of Black Flag Lake (which are described as the foci of activity).  Further, the grant of the proposed licence 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 exploration activities and the wide area over which any hunting or gathering may occur.  Any restriction would also be temporary.

5. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]). In this case the area of the proposed licence is over pastoral and other leasehold and it is likely that pastoral activities have interfered in some way with the native title party’s community and social activities. There is also extensive prior mining and exploration activity over and around the proposed licence. Given the extent to which these various activities have likely already impacted upon the native title party’s current quite limited community or social activities, I find that there is unlikely to be any substantial direct interference with them.

6. The native title party (para 3.3) contends that female members of the Widji claim group have a particular obligation to care for and maintain the ‘spirituality of the land’ and that the grant of the proposed licences will interfere with the performance of this duty.  This will, in turn, result in the disintegration of their ‘cohesion as a community’.   With respect to the contention that the spirituality of the land will be destroyed by exploration activities, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land and that failure to do so properly will have potentially serious social consequences. The Tribunal has dealt with similar situations in other determinations (Walley at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO03/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’ In this matter, there is no evidence presented that would indicate that such spiritual obligations have in fact translated into distinct activities undertaken by the objector on the land encompassed by the proposed licences.

7. Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

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 - Cheinmora v Striker (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. The fact no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean there may not be sites or areas of particular significance to the native title party over the area of the proposed licence. 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 1972 (WA) protects all Aboriginal sites, whether on the Register or not.

2. The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal (I adopt the findings in Walley at [50]-[51]). The Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) 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 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.  As in the past, the Tribunal will continue to have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

1. At paragraph 4.6 of its contentions, the native title party refers to registered sites (Site ID 21721 “Stacks Dam 1” and Site ID 21722 “Stacks Dam 2” located more than eight kilometres south of the proposed licences) and other places of Aboriginal heritage significance in the vicinity of the proposed licences that are presumably as yet unregistered.  In particular, the native title party refers to two water sources (rockholes) “with Tjurkpa associations” that are located south of the Broad Arrow-Ora Banda Road, itself located eight kilometres north of the proposed licences at its nearest point; a traditional stone quarry from which artefactual material was resourced in the vicinity of Black Flag (some 16 kilometres distant from the proposed prospecting licences); and “other sacred and ceremonial sites in the vicinity of the tenements”.  The sites specifically identified are such a distance from the prospecting licence areas that they are not likely to be interfered with by prospecting on it.  In any event the grantee party is now aware of their existence.  There is no credible basis to find that any sites of particular significance exist on the area of the prospecting licences, although the possibility exists that sites which have not yet been mapped or recorded, may do.

2. I also note the native title party’s contentions that their concerns regarding the protection of these sites can be ameliorated by the execution of the heritage agreement proposed by it defining protocols for the conduct of heritage surveys. 

3. Although the evidence does not establish the existence of any sites which are likely to be interfered with I consider that the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act would, in any event, make it unlikely that there will be interference with any area or sites of particular significance.  I am satisfied that the regulatory regime in place will ensure that interference with sites is unlikely.  The native title party contends that a field inspection is necessary to establish this with certainty, after which the grantee party would be free to carry on exploration.  By executing the RSHA, the grantee party has indicated that it is mindful of its responsibilities under the Aboriginal Heritage Act to protect Aboriginal Heritage.  I accept that the grantee party will consult with the native title party about these matters if the tenement is granted. 

4. The tenements are also the subject of the CWAHA (and could in any event be made subject of the RSHA in favour of the Central West Goldfields native title party if necessary under the Government party’s proposed condition) which means that an Aboriginal site survey is likely to be carried out.  As there is considerable affinity between the two native title party groups I am satisfied that any survey conducted by the Central West Goldfields native title party will identify any sites of particular significance to the Widji native title party.

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 exploration 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 activities permitted by an exploration licence (s 66 of the Mining Act) constitute a major disturbance of the ground "even from the viewpoint of the general community".  This generalised position has never been accepted by the Tribunal which has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place.  In most cases (see for example Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), Mr John Sosso at [48]-[64] and Walley at [59]-[63]) the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so. However, this is not an inevitable finding in all cases and there have been exceptions (see Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54; Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462; Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke).

3. At paragraph 5 of the contentions, the native title party states that a permissible quantity of blasting or bulldozing, such as “ten metres by ten metres” for the construction of an exploration camp may be viewed as "minor from the viewpoint of the general community”.  However, if that blasting were to occur on a granite outcrop "established in the Creative Era by the Dreaming ancestors", it would constitute major disturbance as defined by the Aboriginal community as a whole.  While I accept that this would be the case and that it would probably constitute a major disturbance by reference to the broader community if such a site were involved, there is no evidence that such activity is likely to result from the proposed exploration.  In any event such a place is likely to be an Aboriginal site and protected in the manner described above.

4. In finding that there is not likely to be major disturbance to land I have also had regard to the fact that there are no Aboriginal communities in the vicinity, to the Government party’s regulatory regime in the Mining Act and conditions imposed dealing with ground disturbing activities and rehabilitation.  There is no detailed evidence of any sensitive topographical, geological or environmental factors on the proposed licence area which would lead members of the Australian community generally to think that exploration activities would result in major disturbance to land.

Determination

1. The determination of the Tribunal is that the grant of prospecting licences P16/2251 and P16/2252 to Hayes Mining Pty Ltd are acts attracting the expedited procedure.

Hon C J Sumner
Deputy President

24 March 2005