Leonne Velickovic on behalf of the Widji People/Westex Resources Pty Ltd/Western Australia
[2004] NNTTA 13
•4 March 2004
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of the Widji People/Westex Resources Pty Ltd/Western Australia, [2004] NNTTA 13 (4 March 2004)
Application No: WO03/386
IN THE MATTER of the Native Title Act 1993 (Cwlth)
- 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 -
Westex Resources Pty Ltd (Grantee party)
- and -
The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
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 29(2) and 20(5) and s63
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: Jerome Frewen, Desert Management Pty Ltd
Representative for the Timothy Sharp, Crown Solicitor’s Office
Government party: Clyde Lannan, Department of Industry and Resources
Representative of the
grantee party: Steve Milward, Milward Surveys Pty Ltd
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 an Exploration Licence E26/95 (“the Licence”) to Westex Resources Pty Ltd (“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 44.06km² about 19 kilometres north-east of Kambalda 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) (the AHA) 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 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.
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. 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 and the Native Title party have filed submissions for my consideration. The Grantee party has sought to rely on the Government’s submissions. At the Adjourned Preliminary Conference on 24 June 2003 the Tribunal was advised that all parties agreed that the matter should proceed directly to Inquiry.
On 4 December 2003 the Grantee party advised the Tribunal via email that they wished the Inquiry to be determined ‘on the papers’. On 10 February 2004 the Tribunal allowed the Native Title party representative seven days to consider whether they wished to submit affidavits in support of their submission, and if they sought an ‘on country hearing’ in the matter. No response was forthcoming by close of business 3 March 2004.
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. There are no Aboriginal communities within or in the vicinity of the proposed Licence and there are no sites registered on the sites Register of the Department of Indigenous Affairs. The area has previously been subject to extensive exploration, the following exploration licences covering the majority area of proposed Licence E26/95 having been issued and surrendered in the period 1992-2000:
E26/51 Granted 09/08/1992 Surrendered 27/04/1994 Overlap area – 100%
E26/57 Granted 09/03/1993 Surrendered 27/04/1994 Overlap area – 34%
E26/66 Granted 06/12/1994 Surrendered 09/02/1996 Overlap area – 99.7%
- E26/74 Granted 24/01/1997 Surrendered 07/03/2000 Overlap area – 100%
The material provided by the State, pursuant to the direction, reveals that the Licence is to be situated on pastoral leases 3114/981 and 3114/1192, and freehold land parcel East Location 45, owned by Pacific-Nevada Mining Pty Ltd. The Government party refers to the provisions of s 29(2) of the Mining Act 1978 in relation to the freehold section of land subject to the act, to s 20(5) of the Mining Act 1978 in relation to the land occupied by the two pastoral leases, and to Clauses 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (the AHA) which go to protecting Aboriginal areas or sites. Attention is also drawn 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 63 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 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 26 November 2003, a document entitled “Submission of Objector (Widji People): The Impact of the Proposed Act of Exploration Licence E26/95 (applicant Westex Resources) upon the Native Title Rights and Interests of the Widji People.” The document has attached to it an email dated 30 September 2003 from Desert Management, representing the Native Title party, to Steve Milward, who represents the Grantee party. There was no other evidence submitted by the Native Title party and notably no affidavits nor anthropological material were submitted.
The Native Title party submitted 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 proposed 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 15, the submissions do not provide any of the specific information required by the directions.
The submission (at paragraph 26) makes reference to the existence of sites of significance in the following terms:
“I am advised that the Widji people have visited the Application area of E15/741 recently, in the course of undertaking heritage surveys in the region, and they have advised that the area contains sites of significance that may be impacted inadvertently by the Grantee party by the grant of the lease.”
I presume the reference to E15/741, which is not the subject of the current objection and is located some 39kms from the relevant area, is an error. Such an inadvertence would be consistent with the formulaic nature of the material characteristically submitted by the Native Title party’s representative in matters of this nature.
The Native Title party also makes specific reference in the submission to the behaviour of the Grantee party during the course of the negotiation (paras 12-16). The force of this submission appears to be that until a heritage agreement has been entered into between the Native Title party and the Grantee party, the expedited procedure should not apply.
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, 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). I will presume for the purpose of this determination that the reference to E15/741 (at para 26 of the submission) was in fact intended to refer to E26/95. In any event, the Native Title party’s submission alludes to ‘sites of significance’ in the area of the Licence but does not identify these sites or provide any assertion of their particular significance. Consequently, there is no evidence before me of any likelihood of interference with sites of particular significance.
With regard to s 237(c) of the Act, it is apparent from perusal of the Form 4 and the first section of the submission provided by the Native Title party, that a likelihood of major disturbance is contended. Again, this is no evidence fore be that could sustain a finding that s 237(c) is attracted.
At paragraph 16 of the submission, and during the course of various preliminary hearings in this matter, the Native Title party’s representative has put the view that the expedited procedure should not apply if the Grantee refuses to enter a heritage agreement. The point needs to be made that the question of whether such an agreement is accepted or rejected by the Grantee party during the course of any discussions, that take place between the parties subsequent to the lodgement of an objection to the application of the expedited procedure, is irrelevant to the task the Tribunal must undertake when it comes to assess whether the expedited procedure applies in a matter. Section 237 makes it clear that if an act is not likely to interfere directly with the carrying on of the social or community activities of the Native Title party, not likely to interfere with sites or areas of particular significance in accordance with the traditions of the Native Title party or is not likely to involve major disturbance or create rights, the exercise of which is likely to involve major disturbance, then the expedited procedure can apply. The Government party’s option to include a statement that the expedited procedure applies pursuant to s 29(7) of the NTA is ‘entirely unfettered’. (Holt v Manzie [2001] 114 FCR 282 at 298). In some parts of Western Australia the Government party is exercising, or proposing to exercise, its discretion in matters of this nature after determining whether a Grantee party is prepared to enter into a generic regional agreement relating to the protection of Aboriginal heritage. In the event the Grantee party agrees to enter such an agreement, a statement that the expedited procedure applies is included in the s 29 notice. If the Grantee party refuses to enter the agreement, the statement relating to the expedited procedure is not included in the s 29 notice and the normal negotiation procedure applies pursuant to s 31 of the NTA. The motive for such a procedure would appear to be to encourage grantee parties to enter agreements which protect Aboriginal heritage and simultaneously avoid a multitude of objection applications. The objection currently under consideration was not subject to the Government party’s new approach, however the Native Title party appears to confuse the manner of the exercise of the Government party’s discretion under s 29(7) and the law relating to s 237. The manner in which the Government party chooses to exercise its discretion under s 29(7) is a matter which has no impact on the nature of the task that falls to the Tribunal when considering the merits of any particular objection application. The task of the Tribunal is confined to an assessment of whether the proposed act is one which offends any of the limbs of s 237 or not.
In this matter 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 Licence E26/95 to Westex Resources Pty Ltd is an act which attracts the expedited procedure under the Act.
Daniel O’Dea
Member
4 March 2004
2
2
0