Leonne Velickovic on behalf of the Widji People/Western Australia/Scotia Nickel Ltd

[2005] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

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

Application No:        WO03/566

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

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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) (Widji native title party)

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The State of Western Australia (Government party)

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Scotia Nickel Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date:  19 March 2005

Catchwords:             Native title – future act – proposed grant of exploration licence –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, 109(3), 148(b), 151(2), 237

Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 62

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

Dann v Western Australia (1997) 74 FCR 391

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 on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 & WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

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

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

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

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:         Mr Clyde Lannan, Department of Industry & Resources

Representative of the
grantee party:                 Mr Brenton Parry, Western Tenement Services

REASONS FOR DETERMINATION

Background

1. On 21 May 2003, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E24/123 (‘the proposed licence’) to Scotia Nickel Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiation required by s 31 of the Act).

2. On 15 July 2003 Leonne Velickovic on behalf of the Widji People (‘the Widji 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. The proposed licence comprises an area of 38.53 square kilometres, 62 kilometres northerly of Kalgoorlie in the City of Kalgoorlie-Boulder, and 31.74% of the area is overlapped by the Widji native title claim.  

Conduct of the inquiry

1. In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions were in the usual form which, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate or finalise agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. Directions were amended on three separate occasions to first enable the grantee party to assess its position following Scotia Nickel’s purchase by Lion Ore Australia NL, and then to allow time for a negotiated outcome. On 31 May 2004 directions were vacated at the request of the native title party and with the full support of the grantee, to permit further time for the grantee to consider the future of a number of licence applications and negotiate with the native title party in the event that it wished to continue with the application for E24/123. Directions were reset on 15 October 2004 once it was established that the grantee party did intend to proceed with the proposed licence application and that a negotiated outcome was not a possibility. On 25 November 2004 a further extension of the time for compliance was requested by the native title party, and with the concurrence of the grantee and Government parties I approved a further amendment to directions. At a Listing Hearing convened by me on 18 February 2005 the Government party requested a further week to consider an amendment to its own submissions with respect to the use of Regional Standard Heritage Agreements (‘RSHA’) in the light of the Tribunal’s recent decision 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’).  Accordingly I approved a final extension to the Government party for this purpose, and in so doing gave leave to both the grantee party and the native title party to submit additional evidence.  Notwithstanding these final directions no further submissions from any party were received.

2. The Government party has complied fully with directions, and the native title party has submitted a statement of contentions but no supporting affidavit evidence.  The grantee party has chosen to rely on contentions submitted by the Government party.

3. It is within the power of the Tribunal to dismiss an objection application pursuant to s 148(b) of the Act where an objection applicant has failed to comply with a direction by the Tribunal. Directions in the standard form clearly state that not only a statement of contentions, but also ‘a copy of each document relevant to the Inquiry (including any affidavit to be relied on)’ should be provided. In the case of the native title party, it is non-compliant with these directions in that a statement of contentions, signed by Mr Jerome Frewen, the native title party’s representative, only has been provided. In Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 & WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner I accepted the contentions signed by a member of the native title party claim group as evidence having regard to s 109(3) of the Act which provides that the Tribunal is not bound by technicalities, legal terms or rules of evidence. This situation is somewhat different in that there is no evidence actually verified by a member of the native title claim group. While I think that dismissal of the objection could be justified I have decided to deal with the matter on the basis of the contentions made by Mr Frewen. The contentions contain some relevant information and no application to dismiss the objection application from the other parties has been made. The Tribunal has received no request for an on-country hearing by any party involved in these inquiries and I am satisfied that I can adequately deal with the matters 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.

Evidence in relation to the proposed act

1. Government party documentation reveals the area of land subject to the proposed licence to be almost entirely Pastoral Lease 3114/925, the remaining 0.8% of the area comprising unallocated Crown land.  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. Tengraph ‘Quick Appraisal’ documentation sourced by the Tribunal and reflecting the “Applied For” area of the proposed licence reveals that two active mining leases (held by Scotia Nickel Ltd), four pending mining leases, two pending prospecting licences and one pending miscellaneous licence partially overlap the area of the proposed licence. In addition a total of 53 ‘dead’ mineral titles dating back to 1968 overlap or abut the subject area, evidencing a long history of exploration and mining in the region. 

3. Pending overlapping prospecting licences P24/3875 and P24/3976 have attracted objection applications by both the Widji and Central West Goldfields native title parties evidencing these groups’ concerns regarding the grant of mineral titles without prior consultation.  The Central West Goldfields objection was withdrawn following agreement on 15 November 2004 and the Widji objection dismissed for failure to proceed with the objection application on 25 February 2005. 

4. The grant of the proposed licence will be subject to the standard endorsements and conditions applicable to all exploration licences in Western Australia set out in a number of determinations including Walley (at [34]) and Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner (‘Internickel’) at [24].  Additional conditions relating to this proposed licence require the grantee to notify pastoral lessees before undertaking aerial surveys or ground disturbing activities and to maintain rights of ingress and egress.

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 exploration 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. Native title party contentions are not appreciably different from those submitted by another native title party (Central West Goldfields) in recent inquiries (for example Linda Champion and Internickel) in that the objector states that it has been the custom of the objectors to visit the relevant area and surrounds to hunt and gather traditional foods, bush medicines and material for the manufacture of traditional tools and implements, and to educate young group members in these practices.  The native title party asserts that ‘large areas’ of traditional land will be closed off and that there will be evacuation of wild game and destruction of vegetable food and fruits, and expresses particular concern over ‘fouling and spiritual desecration of water-sources’.  However, assertions are of a general nature, with no evidence provided as to the current frequency of these hunting, gathering and educative visits, the details of them, or the number of claim group members involved in the activities.  I also note that the Canegrass Swamp, Lake Goongarrie and Lake Owen area, in which it is said these activities occur, are at the closest point, some eight kilometres from the proposed licence area.  Further, the grant of the proposed licence does not confer exclusive right 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.

4. With respect to the contention that the spirituality of the land will be destroyed by exploration activities and that that impact will be “substantial in nature”, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land and that failure to do so properly will lead to fear of misfortune, illness or death. These contentions are similar to those made in Linda Champion and are rejected for similar reasons (Linda Champion at [65]; Walley v Western Australia at [13]-[21]; Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]; Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12).

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 native title party’s community and social activities have already been curtailed to the extent that the subject area overlaps a pastoral lease. As noted above the area of land the subject of the proposed licence has a history of past, present and future mining activities, and the concerns of claimant groups in the area are evidenced by objections lodged in relation to those acts. However, related objection applications have in all cases been resolved either by withdrawal of the objection or dismissal for failure to proceed with the objection. I also note that Scotia Mine, although no longer operational, is situated within the boundaries of the proposed licence, and the native title party assertion that a Widji ancestor was party ‘to the original discovery of the Scotia Mine’.

6. The area of the proposed licence is 67 kilometres north of Kalgoorlie, a few kilometres to the east of the Goldfields Highway and Kalgoorlie-Leonora Railway and some ten kilometres north of Bardoc in a general area where considerable past mining activities have occurred.  I have no doubt that mining activity in the Goldfields area has since European settlement had a destructive effect on the native title party’s traditional customs and lifestyle and their traditional community or social activities.  Nevertheless, the issue before the Tribunal is whether proposed exploration activity will interfere with the carrying out of those already diminished community and social activities which are currently engaged in.  While I accept that exploration activities can be detrimental to current Aboriginal community activities, there is no evidence of a prior detrimental affect on community and social activities in this area from recent exploration activity.  I also note that the northern boundary of the Widji claim intersects only the southern portion of the proposed licence, and while I can accept that native title party members are not confined by technical boundaries, exploration activities in the context of claimed land overall are likely to be limited. 

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 Government party relies on the regulatory regime based on the Aboriginal Heritage Act 1972 (WA) (ss 5, 17 and 18), to which the grantee party’s attention is drawn upon grant, to contend that there is not likely to be interference with sites of particular significance to the native title party. This regime has been described on numerous occasions by the Tribunal and 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) 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. The revised guidelines will also have the effect of minimising the defence in s 62 of the Aboriginal Heritage Act 1972 (WA) that grantee parties did not know or could not reasonably be expected to have known of the existence of an Aboriginal site (Walley at [50]). The Tribunal will 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.

3. The native title party contends that there are sites of particular significance to them which are likely to be interfered with because the Aboriginal Heritage Act regime is insufficient to ensure their protection and because the grantee party has not entered into a heritage protection agreement with them.  At paragraph 4.6 of contentions, the native title party asserts that Canegrass Swamp, Lake Goongarrie and Lake Owen (amongst others ‘known only the relevant Aboriginal elders’) are sites of ‘extremely high cultural and historical significance’.  It is also said that an unnamed, unregistered and unmapped water source ‘either within or close to E24/123’ hold particular significance.  To assist with this contention an annotated map is provided with contentions indicating that creeks from Canegrass Swamp, which is a registered site (mythological with closed access) but lies outside the subject area, flow generally easterly from that site through a point labelled as ‘Native Well’ and into the proposed licence area before turning south easterly towards ‘Camel Dam’.  Certainly a number of water courses do appear to run from Canegrass Swamp and Tribunal mapping does confirm that Camel Dam is both within the proposed licence area and within the boundaries of the Widji claim area.  This evidence is uncontested and while little detail is provided I accept that there are sites and watercourses which are of particular significance to the native title party for the purposes of this determination, even if the location is not identified.  However, Canegrass Swamp, Lake Goongarrie and Lake Owen which are of particular significance and whose location is known, are clearly outside the subject area and I find it unlikely that they will be interfered with by exploration on the licence area.  Further, the existence of the watercourses emanating from Canegrass Swamp and bisecting the subject area (including Camel Dam, the location of which is known) is now known to the grantee party and steps will need to be taken to ensure that there is no breach of the Aboriginal Heritage Act in respect of them, an obligation which I am satisfied the grantee party will comply with.

1. I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with any area or sites of particular significance.  I note native title party contentions that their concerns regarding the protection of sites can be ameliorated by the execution of a heritage agreement defining protocols for the conduct of heritage surveys.  Mr Parry advised during the Listing Hearing of 18 February 2005 that the grantee party had many standard heritage agreements in place with other native title parties and would comply with the Aboriginal Heritage Act as it has done in the past.  I am satisfied that the Government party’s regulatory regime with respect to Aboriginal sites ensures that there is no real risk of interference, even though the possibility exists that some sites of particular significance, whether recorded or not, may exist on the subject area.

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 concerns of the native title party are set out in contentions (para 5) and have largely been dealt with when considering ss 237(a) and 237(b). The native title parties contend that a site survey is necessary to prevent major disturbance. For the reasons already given on s 237(b) I do not consider disturbance to land which amounts to interference with an Aboriginal site to be likely. This means that while I accept the contention that a permissible quantity of blasting or bulldozing (eg. ten metres by ten metres), if performed on a geographical feature said to be established in the Creative Era, would constitute major disturbance in the view of all Aboriginal people associated with that particular story or song line and indeed to the general Australian community it is not something which is likely to happen.

3. The native title parties also contend that the activities permissible upon grant of the proposed licences constitute a major disturbance of the ground, even by the standards of the wider Australian community.

4. In Linda Champion (at [78]-[79]) I found the Government party’s regulatory regime sufficient to ensure that major disturbance to land was not likely to result from the grant of the proposed licence and I adopt those findings for the purpose of this inquiry.  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 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 exploration licence E24/123 to Scotia Nickel Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

19 March 2005