Leonne Velickovic on behalf of the Widji People (WC98/27)/Western Australia/Wendy Ann Blewett
[2004] NNTTA 4
•29 January 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People (WC98/27)/Western Australia/Wendy Ann Blewett, [2004] NNTTA 4 (29 January 2004)
Application No: WO03/385
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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The State of Western Australia (Government party)
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Wendy Ann Blewett (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Mr Daniel O’Dea
Place: Perth
Date: 29 January 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, 7 and 17
Mining Act 1978 (WA), ss 20(4) and 46
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
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: Yvonne Brownley, Desert Management
Representative for the
Government party: Mr Clyde Lannan, Department of Mineral & Petroleum
Resources
Representative of the
grantee party: Wendy Ann Blewett.
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 a Prospecting Licence 25/1684 (“the Licence”) to Wendy Ann Blewett (“the Grantee”) under the Mining Act 1978 (WA). The notice included a statement that the Government party considered the act to be one that attracted the expedited procedure, that is one 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 statement that the grant of the Licence attracted the expedited procedure.
The proposed Licence relates to an area of 199.96 ha about 35 kilometres south-east of Kalgoorlie within the City of Kalgoorlie-Boulder. The area of the proposed Licence 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 believed the grant of the Licence was not an act attracting the expedited procedure for the following reasons:
a) the Licence 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 grant of the Licence meant that 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 of the Grantee party to consult with the Native Title party before performing any of the activities permitted by the Licence and this would cause distress and potential damage to sites. Any damage to such sites may lead to the Native Title Party suffering sanctions (presumably at the hands of neighbouring native title holders); and
d) the level of protection provided by the Aboriginal Heritage Act 1972 (WA) and the Guidelines, issued to persons obtaining exploration licences by the Government party, 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 alias:
a) evidence of areas and sites of particular significance within the area of the proposed Licence;
b) evidence of the interference with the native title claimants community presence on the site and their native title rights;
c) evidence of the particular significance of the land concerned to the Native Title party in accordance with their beliefs; and
d) evidence about the real and justifiable concerns of the Native Title party concerning the likelihood of interference with significant areas and sites within the land concerned.
The 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. The Directions were amended on 18 August 2003 as the parties sought to proceed directly to inquiry. The amended Directions provided for compliance by the Government party by 1 September 2003, the Native Title party by 8 September 2003 and the Grantee party by 15 September 2003.
The Government party and the Native Title party have filed submissions for my consideration. The Grantee party has sought to rely on the Government’s submissions.
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 Prospecting Licence will not give rise to any of the issues raised by ss 237(a), (b) and (c) of the Act. It refers to the provisions of s 20(4) and s 46 of the Mining Act 1978 and to Clauses 5, 7 and 17 of the Aboriginal Heritage Act 1972 (WA) (the AHA), to the standard conditions which will apply to the grant as set out in the schedule attached to its contentions and to the conditions which are imposed on the grant by s 46 of the Mining Act. It states that the grant will include an endorsement drawing the Grantee’s attention to the provisions of the AHA. The material provided by the State, pursuant to the direction, reveals that the Licence is to be wholly situated on pastoral lease 3114/1192, there are no Aboriginal communities within its vicinity and there are no sites registered on the sites Register of the Department of Indigenous Affairs.
The Grantee Party did not file any contentions and sought to rely on those filed by the Government Party.
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 tenement. 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 18 August 2003, a document entitled “Submissions of the Native Title Party (Widji People): The Impact of the Proposed Act of Prospecting Licence Application P25/1684 (applicant Wendy Ann Blewett) upon the Native Title Rights and Interests of the Widji People.” The document had attached to it an email from Chris Hake who represents the Grantee party. There was no other evidence submitted by the Native Title Party and notably no affidavit material or anthropological material.
The Native Title Party submitted all three limbs of s 237 were attracted by the Act because:
a) the Government Party did not intend to impose a condition relating to Aboriginal sites but instead an endorsement on the Licence with a notation drawing the attention of the Grantee to the provisions of the AHA;
b) the protection of Aboriginal sites by the AHA only provides punitive consequences for unlawful and knowing interference with sites and does not prevent innocent or inadvertent damage to sites;
c) the entitlement of the Grantee under the Licence to remove material from the land was likely to give rise to activities inconsistent with the enjoyment of native title rights and interests;
d) the Grantee should negotiate with the holders of native title in relation to land and waters concerned;
e) it is probable the Grantee will carry out the activities to the full extent permitted by the Licence.
f) On the basis of the email between the Native Title party’s representative and the Grantee party’s representative dated 29 June 2003, that the Grantee party had advised that they would not comply with the AHA and consequently had no intention of avoiding sites of significance;
g) the majority of the individuals comprising the claim group reside in or adjacent to, or not far from, the townships and pastoral properties within the claim area;
h) the claim group have followed practices since before the introduction of white settlement based on Creation beliefs, that there are a large number of tracts of ancestral beings criss-crossing the claim area and this material has been evidenced in numerous anthropological reports;
i) in accordance with traditional laws and customs of the claim group, they have responsibility for the claim area;
j) members of the claim group have the right to access and freely enjoy the native title rights and interests within the claim area; and
k) the land contains sites of significance relating to birth, conception, meeting places and burial place and traditional law requires that those sites be not disturbed.
The submission concluded with a summary of its argument asserting that the act was likely to directly interfere with “activities’ because:
a) the activities of the Grantee will impede the ability of the Native Title party to freely access the area and enjoy their native title rights; and
b) the movement of vehicles, machinery and exploration activities will interfere with natural plant life and animals of the area, denying members of the claim group access to natural reoccurring resources and that the very fact that consultation has not taken place, is interference with traditional laws and customs in itself; and
the act would interfere with sites because:
a) the act is likely to interfere with areas or sites because the Grantee has indicated his refusal to abide by the AHA;
b) the Grantee may inadvertently interfere with sites, being unaware of their existence;
c) the Grantee may make an application under s 18 of the Aboriginal Heritage Act to interfere with the site and if so, such a decision is made at the discretion of the Minister, which is inherently unjust; and
d) (at B(iv) of the submission, a point I will quote rather than paraphrase as its meaning is unclear) “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.”
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 submission provided by the Native Title party which indicates, with any degree of specificity, any community or social activities that are carried on within the area the subject of the proposed licence, or 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). There is nothing in the submission provided by the Native Title party which identifies any site or area of significance within the area the subject of the proposed Licence. Consequently there is no evidence of the significance of any site or area within the area of the proposed Licence or indeed the significance of the area of the proposed Licence as a whole to the Native Title party. There is a reference in paragraph 25 of the submission to Dreamtime sites of significance and an assertion in the second sentence to the effect that the land contains such sites. However, it is not clear that that reference is to the land the subject of the proposed Licence. Indeed, read in the context of the submission as a whole, it would appear to refer to the area the subject of the entire claim.
There is an assertion by the Native Title party in paragraphs 9 to 11 of the submission, to the effect that the response of the Grantee’s representative to the proposed agreement constituted an admission or a declaration that they would not be bound by the AHA and “had no intention of avoiding sites of significance”.
I have not seen a copy of the letter to which the Grantee’s representative was responding in the email of the 29 June 2003, nor the proposed agreement, however it would appear that the response of the Grantee party was to the proposal as a whole rather than any specific reference to the avoidance of sites of significance or the application of the AHA. In any event, the Grantee party has indicated that it relies on the submissions of the Government party which clearly indicate that the Grantee will be required to abide by the relevant law, including the AHA.
It was apparent in the Form 4 and from the first section of the submission provided by the Native Title party, that they contended that s 237(c) was also attracted by the act. However, there is nothing in the submission which makes reference to major disturbance, nor in the summary of the submission on pages 4 and 5 is there a reference to major disturbance.
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) are relevant.
Determination
The determination of the Tribunal is that the grant of Prospecting Licence P25/1684 to Wendy Ann Blewett is an act which attracts the expedited procedure under the Act.
Daniel O’Dea
29 January 2004
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