Leonne Velickovic on behalf of the Widji People/Western Australia/Glyn Thomas Morgan, Angus Gordon Gailbraithe
[2003] NNTTA 103
•26 September 2003
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Western Australia/Glyn Thomas Morgan, Angus Gordon Gailbraithe, [2003] NNTTA 103 (26 September 2003)
Application No: WO02/636
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 Widji People (WC98/27) (native title party)
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The State of Western Australia (government party)
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Glyn Thomas Morgan, Angus Gordon Gailbraithe (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon. EM Franklyn QC, Deputy President
Place: Perth
Date: 26 September 2003
Representative of the
native title party: Mr Jerome Frewen, Desert Management
Representative for the
Government party: Mr Clyde Lannan, Department of Mineral & Petroleum
Resources
Representative of the
grantee party: Mr William (Bill) O’Donnell, Amalgamated Prospectors
and Leaseholders Association of W.A. Inc.
Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether the matter can be adequately dealt with on the papers – likelihood of act directly interfering directly with the carrying on of community or social activities – likelihood of act interfering with sites of particular significance – likelihood of act involving major disturbance – absence of evidence to support the objection -the act does attract the expedited procedure.
Legislation: Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s66
Native Title Act 1993 (Cth) ss31, 109, 148, 151, 237
Cases: Chienmora v Striker (1996) 142 ALR at 34-35
Lapthorne and Ors/The State of Western Australia/Global Stone WO1/581, 13 November 2002 Deputy President the Hon. EM Franklyn QC
Dann v Western Australia 74 ECR 71
REASONS FOR DETERMINATION
Background
On 11 December 2002, pursuant to s 29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the State”) gave notice of its intention to do a future act, namely to grant Prospecting Licence P15/4512 comprising 10.14 hectares (“the Prospecting Licence”) to Glyn Thomas Morgan and Angus Gordon Gailbraithe (“the grantee”) under the Mining Act 1978 (WA). The notice included a statement that the State considered that the act to be one which attracts the expedited procedure (ie one which can be done without the normal negotiation required by s 31 of the Act).
On 13 December 2002, Leonne Velickovic, a registered Native Title Claimant on behalf of the Widji People (“the native title party”) (WC98/27 registered as from 15 June 1998) lodged with the Tribunal an objection to the statement that the grant of the Prospecting Licence attracted the expedited procedure. The objection contained assertions which revealed the native title party to rely on sub paragraphs (a) (b) (c) of s 237 of the Act. It alleged, inter alia, that the native title party would produce evidence of a number of specified matters including areas and sites of particular significance on the Prospecting Licence, interference with the community’s presence or activities on the Prospecting Licence and evidence of concern as to the likelihood of interference with significant areas and sites on the Prospecting Licence. The entire area of the Prospecting Licence is situated on the land the subject of the native title party’s claim WC98/27.
The Directions
On 10 January 2003 the Tribunal issued Directions for the lodgement by each party with the Tribunal and service on the other parties of their respective Contentions and other documents and material to be relied on by them respectively. The Directions provided for compliance by the State by 1 August 2003, the native title party by 8 August 2003 and the grantee party by 15 August 2003. The Directions also provided for a Listing Hearing to be held on 21 August 2003, for liberty to the parties to apply to vary the Directions, drew attention to the provisions s 141 of the Act (which renders the objection subject to dismissal for failure by the objector within a reasonable time to comply) and that, as far as practicable, the parties were to provide evidence in documentary form. They also made provision for the preservation of confidentiality for documents of a confidential nature.
On 10 June 2003 the said compliance dates were varied by consent of the parties to provide for compliance by the State by 13 June 2003, by the native title party by 19 June 2003 and by the grantee by 26 June 2003, the Listing Hearing date being also varied to 3 July 2003. The State and grantee duly complied with those Directions but the native title party failed to do so. The Listing Hearing was called on on 3 July but, as the native title party did not attend, was adjourned to 4 July. On 4 July 2003, with the consent of all parties, the Tribunal directed the native title party to comply with the directions on or before 30 July 2003 and directed that a Listing Hearing be held on 31 July 2003. The native party lodged and served a Statement of Contentions on 10 July 2003.
At the Listing Hearing on 31 July, which the native title party’s representative did not attend, the grantee and the State advised the Tribunal that each was satisfied that the issues raised by the Objection Application could be adequately determined on the material before the Tribunal and in the absence of the parties. On the same date the native title party’s representative Yvonne Brownley, advised the Tribunal that the native title party would not be filing any Affidavit in this matter. On 8 August 2003 the Tribunal’s case manager requested advice from that representative as to whether the native title party “wishes to rely on its Contentions only or whether there is any request to provide oral evidence and have a hearing”. The reply, on the same date, was that the Widji people’s view was that the matter should be heard on country. On 10 August, the Tribunal informed the parties that a hearing would be held to determine whether the matter should be heard on country or on the papters. On 14 August 2003, Ms Brownley informed the Tribunal’s case manager that Mr Jerome Frewen was now handling the Widji objection matters. On the same date Mr Frewen advised the Tribunal by email that he was “now handling” the Widji matters and advised that if Mr Velickovic wished the matter to be dealt with on country that was also his view. It was not clear from those advices whether the native title party had appointed Mr Frewen as its representative for the Objection Application enquiry and no other advice as to Mr Frewen’s right to represent the native title party was received..
On 11 August I was appointed by the Tribunal for the purposes of this enquiry and convened on 1 September 2003 a preliminary hearing to determine whether, pursuant to s 151 of the Act, the issues for determination could be adequately dealt with by considering, without holding a hearing, the documents and other material provided to the Tribunal. At that hearing in response to a question from me, Mr Frewen advised that the native title party had appointed him its representative for the purposes of the Objection enquiry. I make the observation that it is desirable to have advice from the native title party of its appointment of a representative and of any changes in representation.
Material Provided by the State
The material provided by the State pursuant to the Directions reveals, inter alia, the Prospecting Licence to be wholly situated on Pastoral Lease 398/769 and to be the subject of Crown Lease 173/1987, there to be no aboriginal community within its vicinity, there to be no sites on it registered under the Aboriginal Heritage Act 1972, it to be wholly within the boundaries of existing prospecting licence 15/4204 comprising 117.98 hectares and there to have been the following previous mining tenements granted over the land the subject of the Prospecting Licence:
1.Mining Lease 15/0041 granted 25 November 1988, surrendered 8 December 1989;
2.Mining Lease 15/00486 granted 8 December 1989, surrendered 12 April 1991;
3.Prospecting Licence 15/03411 granted 19 April 1994, surrendered 28 August 1997;
4.Prospecting Licence P15/4204 granted 23 March 2000 and current to 27 March 2004 in respect of which the tenement holder claimed expenditure of $5,521.00 in 2003, $9, 957.00 in 2002 and $11,006.00 in 2001.
The tenegraph map provided by the State pursuant to the Directions shows the Prospecting Licence to be surrounded by previous, pending and current mining tenements extending to the west for at least 13 kilometres, to the north for at least 15 kilometres, to the south for at least 18 kilometres and to the east for at least 10 kilometres.
Material Provided by the Native Title Party
The Directions required the native title party to provide, inter alia. to the Tribunal and each of the other parties by the specified date a statement of its contentions to include a statement of the nature and location of sites or areas of significance on or adjacent to the Prospecting Licence, identifying in each case the particular significance of the site or area, a statement of the community or social activities of the native title party contended to be likely to be interfered directly by the grant of the Prospecting Licence and a copy of each document relevant to the enquiry, including any Affidavit to be relied on by the native title party. They also required lodgement and service of a statement of the evidence of any witness for the native party and details of where the party proposes that such evidence be heard. The Directions as originally made and varied required compliance by the native title party prior to compliance by the grantee, so that, in providing its contentions and material pursuant to the Directions, the grounds of and evidence supporting the objection could be identified and responded to by the grantee, the issues thereby being identified, enabling a timely determination of the issues. The native title party’s failure to comply with those directions prior to the due date for compliance by the grantee deprived the grantee of the opportunity to identify the issues and involved delay and further hearings.
The only material provided by the native title party pursuant to the Directions is its statement of contentions. That statement does not include any statement of the nature and location of any sites or areas of significance on or adjacent to the Prospecting Licence or any statement of the native title party’s community or social activities contended to be likely to be interfered with directly by the grant. Nor does it contain any proposal for the inquiry to take place on country. No statement of evidence intended to be relied on or any other document relevant to the inquiry was lodged or served by the native title party. The statement of contentions, in the main, is directed to a recitation of matter relevant to the native title party’s connection to the land the subject of its native title claim, its claimed rights in respect of that land, the existence on that land at unspecified places of unspecified sites of significance and to unspecified activities conducted on it. It does not provide any of the specific information required by the Directions.
Grantee’s Contentions
The contentions of the grantee point out that the Prospecting Licence is in respect of land already the subject of prospecting licence 15/4204, granted on 28 March 2000 to one Williams, as were contiguous Tenements P15/4202, P15/4203, the three said together to comprise 452 acres. They state that the grantee is not aware of any objections lodged by the Widji people to the grant of those tenements and assert that the Prospecting Licence area comprises .022% of the total area granted to Mr Williams. Proof of the grant of P15/4202 and 4203 was not produced by the grantee and no mention of those tenements is made in the material provided by the State. It is of some limited relevance however that the native title party made no reference to objection having been lodged in respect of P4204, despite the grantee’s claims of no knowledge of any objection, of which the native title party had notice well before it lodged its contentions.
The Preliminary Hearing
At the Preliminary Hearing on 1 September, I enquired of Mr Frewen why the native title party was requesting that the hearing be conducted on country. He advised that as the grantee parties had not agreed to undertake a heritage survey he thought it important that the Tribunal and the grantee be shown the country the subject of the Prospecting Licence. It was pointed out to him that the native title party had not submitted evidence with its contentions as to the nature and location of the sites of significance on or adjacent to the tenement or as to community or social activities likely to be interfered with directly by the grant of the tenement and he was asked why the other parties should go to expense of having a hearing on country. Mr Frewen’s reply was that the grantee parties generally signed a Heritage Protection Survey Agreement and he expressed the opinion that it was virtually a matter of law that the grantee should do so and repeated his client’s view that the enquiry should be conducted on country. He gave no indication of the nature of the evidence that could or would be called were there to be a hearing on country and made no claim that there was any area or site on the Prospecting Licence of particular significance within the meaning of s 237 of the Act . Both the State and the grantee repeated their request the matter be determined on the papers.
Section 237 provides as follows:
“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.
The sole basis for a hearing “on country” advanced at the preliminary hearing was that the grantee had not agreed to undertake a heritage survey. There was, even then, no claim that, as a fact, any area or site of particular significance in accordance with the traditions of the native title holders existed on or in the vicinity of the Prospecting Licence or, indeed, that a site or area of any significance whatsoever existed there. Nor was there any claim that any activity of the nature referred to s 237 (a) of the Act was carried on on or in its vicinity.
Having regard to the materials provided by the respective parties pursuant to the Directions, I am satisfied that the objection application can be adequately determined on the material lodged with or provided to the Tribunal and in the absence of the parties.
Findings on the Objection Application
The issues of the likelihood of interference “directly with the carrying on of community or social activities of the persons who are the holders of native title” (s 237 (a)) or of the likelihood of interference “with areas or sites of particular significance in accordance with their traditions” to such persons (s 237 (b)), only arise for consideration if there is evidence of the carrying on of any such activities or of the existence of any such area or site as the case may be. To be a relevant site of particular significance within the meaning of s 237(b), the site must be one of more than ordinary significance in accordance with the traditions of the native title holders (Chienmora v Striker (1996) 142 ALR at 34 to 35. The nature and location of the community or social activity and of any area or site of particular significance together with particular significance, as the case may be, are each relevant to the issue of “likelihood” (Lapthorne and Ors/The State of Western Australia/Global Stone. WO01/581 13 November 2002 Deputy President the Hon. E M Franklyn). There is no evidence before the Tribunal of the carrying on of any relevant community or social activity or the existence of any relevant area or site on or in the vicinity of the Prospecting Licence and so the issue of likely interference with any thereof does not arise.
The material provided by the State and served on the other parties includes a statement of the conditions to be endorsed on the Prospecting Licence if granted. Those conditions draw attention to the provisions of the Aboriginal Heritage Act 1972 (“the AHA”) and impose conditions for the rehabilitation of any land disturbed by drilling holes, costeans or otherwise caused by exploration. There is no reason to assume that the grantee will not act accordance with the provisions of the AHA or will breach the conditions imposed on the proposed grant. It is of some significance that the Prospecting Licence is wholly situate on an existing prospecting licence (P15/4204) on land which has been the subject of the grant of other prospecting licences and mining leases and further is surrounded by land the subject of present, pending and past mining tenements for some distance in all directions. The meaning of “major disturbance” in s 237(c) was considered in Dann v Western Australia: 74 FCR 391. The question 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 local community as disclosed by the evidence. The mere assertion by the native tittle party that exploration activities are likely to involve major disturbance is not enough. Having regard to the conditions to be imposed on the Prospecting Licence, the provisions of the AHA, the history of grants of mining tenements covering and surrounding the Prospecting Licence and that it is wholly on a current prospecting licence, I am satisfied that its grant will not involve major disturbance within the meaning of s 237(c).
Determination
The Tribunal is satisfied on the evidence that the grant of Prospecting Licence P15/4512 is an act which attracts the expedited procedure.
Hon EM Franklyn QC
Deputy President
26 September 2003
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