Leonne Velickovic on behalf of the Widji People (WC98/27)/George Juris Petersons/Western Australia
[2004] NNTTA 12
•4 March 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People (WC98/27)/George Juris Petersons/Western Australia, [2004] NNTTA 12 (4 March 2004)
Application No: WO03/374
IN THE MATTER of the Native Title Act 1993 (Cwlth)
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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)
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George Juris Petersons (Grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Mr Daniel O’Dea
Place: Perth
Date: 4 March 2004
Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – evidence insufficient to support objection - determination that the act attracts the expedited procedure.
Legislation: Aboriginal Heritage Act 1972 (WA), ss 5, 17 and 18
Mining Act 1978 (WA), ss 24(3)-24(7), s 26 and 63
Native Title Act 1993 (Cth) ss 29, 31, 109, 148, 151, 237(a), (b) and (c)
Cases: Chienmora v Striker (1996) 142 ALR 21 at 34-35
Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL,NNTT WO01/179 & WO01/180, [2002] NNTTA 24 (8 March 2002), Hon C J Sumner
Dann v Western Australia (1997) 74 FCR 391
Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd [2003] NNTTA 126 (24 December 2003) Dan O’Dea WO02/409, WO03/188
Representative of the
Native Title party: Jerome Frewen, Desert Management
Representative for the Trevor Creewell (for Timothy Sharp), Crown Solicitor’s Office
Government party: Clyde Lannan, Department of Industry and Resources
Resources
Representative of the Bill O’Donnell, Amalgamated Prospectors and Leaseholders
grantee party: Association of WA
REASONS FOR DETERMINATION
Background
On 9 April 2003, pursuant to s 29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the Government party”) gave notice of its intention to do a future act, namely to grant Exploration Licences E15/666 and E15/667 (“the Licences”) to George Juris Petersons (“the Grantee”) under the Mining Act 1978 (WA). The notice included a statement that the Government party considered the acts to be ones that attracted the expedited procedure, that is acts that can be done without the normal negotiation required by s 31 of the Act.
On 7 April 2003, Leonne Velickovic on behalf of the Widji People (“the Native Title party”) (WC98/27) lodged with the Tribunal an objection to the statements that the grant of the Licences attracted the expedited procedure.
Proposed Exploration Licence E15/666 relates to an area of 2.93km² about 14km south of Kambalda in the Shire of Coolgardie. Proposed Exploration Licence E15/667 relates to an area of 8.78km² about 16km south of Kambalda in the same Shire. The area of each of the proposed Licences falls totally within the area of land and waters subject to the claim by the Native Title party.
The objection sets out at paragraph 7 that the Native Title party believes the grant of the Licences was not an act attracting the expedited procedure for the following reasons:
a) the Licences gives the Grantee party unfettered access to the area for a long period of time, without any requirement to advise the Native Title party of the activities conducted, including the location, duration and extent of the disruption to land;
b) the Native Title party would be interrupted in the exercise of their traditional activities, which are still practiced in the area;
c) there is no obligation for the Grantee party to consult with the Native Title party before performing any of the activities permitted by the Licences, which would cause distress to the native title holders and potential damage to sites. According to Aboriginal tradition any damage to such sites may lead to the Native Title party suffering sanctions (presumably at the hands of native title holders); and
d) the level of protection provided by the Aboriginal Heritage Act 1972 (WA) (the AHA) and the Guidelines, issued by the Government party to persons obtaining exploration licences, is inadequate.
At paragraph 8 of the objection, the Native Title party set out the type of evidence it intended to adduce in support of its objection, including, inter alia:
a) evidence of areas and sites of particular significance within the area of the proposed Licences;
b) evidence of interference with the native title claimants’ community presence on the site, and their native title rights;
c) evidence of the particular significance to the Native Title party of said land, in accordance with their beliefs;
d) evidence of historical association between the native title claimants and the land concerned; and
e) evidence regarding the real and justifiable concerns of the Native Title party concerning the likelihood of interference with significant areas and sites within the land concerned.
Directions
On 30 April 2003 the Tribunal issued Directions for the lodgement by each party of their respective contentions and the provision of other documents and material to be relied upon by them. These Directions provided for compliance by the Government party by 1 December 2003, the Native Title party by 8 December 2003 and the Grantee party by 15 December 2003. The Government party, the Grantee party and the Native Title party have all filed submissions for consideration.
On 9 May 2003 the Native Title party representative contacted the Grantee party by facsimile indicating a willingness to enter into negotiations with a view to withdrawing the Objection to the expedited procedure. However on 12 August 2003 the Grantee party advised that the matter should go directly to Inquiry. During the Listing Hearing of 23 October 2003 the Tribunal was advised that the Government party and the Grantee party agreed to a Determination being made ‘on the papers’. The Native Title party did not attend the Listing Hearing. Tribunal staff have contacted the Native Title party by email on 6 November 2003, 12 and 13 February 2004 seeking their views as to whether they objected to the matter proceeding on the papers or whether they sought a on country hearing. The Native Title party responded on 12 February but did not address the relevant issues. The Tribunal responded on 13 February seeking an immediate notification from the Native Title party if they had any objection to proceeding to inquiry on the papers. No notification was received as of 3 March 2004. In the circumstances, I am satisfied it is appropriate to proceed to determine the objection ‘on the papers’.
Legal issues
Section 237 of the Act sets out that for an act to qualify as being an act attracting the expedited procedure it:
a) is not likely to interfere directly with the carrying on of the community or social activities of the Native Title party;
b) is not likely to interfere with areas or sites of particular significance, in accordance with the traditions of the Native Title party; and
c) is not likely to involve major disturbances to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
Material Provided by the State
The Government party contends that the Exploration Licences will not give rise to any of the issues raised by ss 237(a), (b) and (c) of the Act. The area covered by the Licences is Unallocated Crown Land save for an area of E15/666 covered by water Reserve 17938. There are no Aboriginal communities within or in the vicinity of either proposed Licence and there are no sites registered on the sites Register of the Department of Indigenous Affairs. Reference is made to the provisions of s 24(3)-24(7), and s 26 of the Mining Act 1978 in relation to the section of proposed Licence which covers Reserve 17938, and to Clauses 5, 17 and 18 of the AHA. The standard conditions which will apply to the grant are also set out in the schedule attached to contentions and reference is made to the conditions imposed on the grant by s 63 of the Mining Act.
Material Provided by the Native Title party
The Directions issued require the Native Title party to provide, inter alia, a statement of its contentions including a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site and a statement of the community or social activities of the Native Title party that it is contended is likely to be interfered with directly by the grant of the Licences. The Directions allowed for the lodgement of any affidavit evidence or witness statement to support any of the propositions relied upon, however, none were filed.
The representative for the Native Title party submitted to the Tribunal on 16 October 2003, a document entitled “Submissions of the Objector (Widji People): The Impact of the Proposed Act of Exploration Licences E15/666 and E15/667 (applicant George Juris Peterson) upon the Native Title Rights and Interests of the Widji People.” No affidavit or anthropological material has been submitted.
In its submission the Native Title party states that the proposed acts did not attract the Expedited Procedure because all three limbs of s 237 were attracted. The submissions are not helpful. They do not contain any statement of the nature of the Native Title party’s social or community activities within the area of the Licences or how they contend such activities are likely to be interfered with by the grant of the Licences. The submissions are largely a recitation of the Native Title party’s contention that they have traditional rights and interests in the claim area, that there are unspecified sites and dreaming tracks across the entirety of the claim area and that the grant of the Licences will, in unspecified ways, cause them distress. They also emphasise their view that the AHA is inadequate to protect Aboriginal sites and that the expedited procedure should not apply in any situation where the Grantee party refuses to enter into a heritage agreement. With the exception of the matter referred to in paragraph 13, the submissions do not provide any of the specific information required by the directions.
The submissions do make reference to the existence of a site of significance on Licence E15/667 in the following terms:
“I am advised that the Widji people have visited the area of E15/667 recently, in the course of undertaking heritage surveys in the region, and they have advised that the area contains at least one site of significance that will be affected by the grant of the leases.”
Material Provided by the Grantee party
The representative for the Grantee party provides a “Supporting Statement of Contentions”, which includes a map indicating that Lake Lefroy encompasses the majority area affected by the proposed grants. The representative contends that the area has previously been the subject of grant of two tenements, namely E15/203 and E15/618, that during the life of said tenements the area was extensively explored and large portions drilled, and submits that, contrary to Native Title party contentions, previous exploration history does not support the application of s 237(a) of the Act but rather indicates that the expedited procedure should be attracted.
Finding
The issue of the likelihood of interference “directly with the carrying on of community or social activities of the persons who are holders of the native title” (s 237(a)) only arises for consideration if there is evidence of the carrying on of any such activities. The directions required a statement concerning the community or social activities likely to be interfered with in the event that the act was done. There is nothing in the generalised submission provided by the Native Title party which indicates, with any degree of specificity, the community or social activities that are carried on within the area the subject of the Licences, nor indeed the claim area itself.
The question raised by s 237(b) of the Act, only arises for consideration if there is evidence of the existence of an area or site of particular significance within the meaning of s 237(b) of the Act. Section 237(b) requires that the site or area be one of more than ordinary significance in accordance with the tradition of the native title holders (Chienmora v Striker (1996) 142 ALR 21 at 34-35). Although the Native Title party submission alludes to “at least one site of significance” in the vicinity of E15/667, there is nothing in the submission to identify this site or area of significance. Neither does the extract from the Department of Aboriginal Affairs Site Register provided with the Government party contentions list such a site. The Tribunal has held that the Register of Aboriginal sites is not an exhaustive list of all Aboriginal sites in Western Australia and the fact that no registration exists is not necessarily indicative of the existence of sites or otherwise in an area, nor of the particular significance of such a site, if it existed. (Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL,NNTT WO01/179 & WO01/180, [2002] NNTTA 24 (8 March 2002), Hon C J Sumner). However, in this matter there is no information as to the location of the site or other possible sites or any indication of particular nature of it, or their, significance. In order to attract the operation of s 237(b) the site must be shown to be of particular significance to the Native Title party in the sense of being special or of more than ordinary significance (Chienmora v Striker (1996) 142 ALR 21 at 34-35, Carr J). On the basis of the material before me I cannot be satisfied of the significance or otherwise of this site.
It is apparent from both the Form 4 and the first section of the submission provided by the Native Title party (paragraph c) that they contend the proposed acts also attract s 237(c). The question that the Tribunal is required to decide when considering s 237(c) of the Act is to assess whether the grant of the licences is likely to involve major disturbance to the land concerned, or create rights the exercise of which will involve a likelihood of major disturbance. The question of whether there is a likelihood of major disturbance is to be determined from the viewpoint of the general community, but taking into account the concerns of the Native Title party as disclosed by the evidence. A mere assertion of such likelihood is not enough (Dann v WA (1997) 74 FCR 391). The material before me does not allow me to be satisfied of any such likelihood.
Consequently I am not satisfied that any of the limbs of s 237 are attracted by the proposed act. By way of conclusion, I believe that the comments I made in Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd [2003] NNTTA 126 (24 December 2003) Dan O’Dea WO02/409, WO03/188, are relevant.
Determination
The determination of the Tribunal is that the grant of Exploration Licences E15/666 and E15/667 to George Juris Petersons is an act which attracts the expedited procedure under the Act.
Daniel O’Dea
4 March 2004
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