Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited
[2005] NNTTA 22
•12 April 2005
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, [2005] NNTTA 22 (12 April 2005)
Application No: WO04/62
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Cazaly Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 12 April 2005
Catchwords: Native title – future act – proposed grant of prospecting licences – expedited procedure objection application – not likely to be interference with the carrying on of community or social activities, sites of particular significance or major disturbance to land – act attracts the expedited procedure
Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 151(2), 237
Mining Act 1978 (WA) s 57(4)
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18
Cases:Cheinmora v Striker (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner
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
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1
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 WO02/281, [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
grantee party: Mr Nathan McMahon
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DETERMINATION
Background
On 24 March 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P24/3861, P24/3862, P24/3863, P24/3864, P24/3865, P24/3866, P26/3220, P26/3221, P26/3222, P26/3223, P26/3224, P26/3225, P26/3226, P26/3227, P26/3228, P26/3229, P26/3230, P26/3240, P26/3241, P27/1630, P27/1631, P27/1632, P27/1633, P27/1634, P27/1635, P27/1636 (‘the proposed licences’) to Cazaly Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 19 May 2004, Leonne Velickovic on behalf of the Widji People (‘the 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 determination of native title (WC98/27) was entered on the Register of Native Title Claims from 15 June 1998.
All proposed licences are situated within the City of Kalgoorlie-Boulder, range in area from 46.18 hectares to 200 hectares, and are overlapped 100% by the registered native title claim. P24/3861 to P24/3866 are located between 37 and 42 kilometres northerly of Kalgoorlie; P26/3220 to P26/3230 are 13 to 17 kilometres south easterly of Kalgoorlie and P26/3240, P26/3241 and P26/1630 to P26/1636 are 12 to 17 kilometres north easterly of Kalgoorlie.
In addition two other registered native title claimant groups overlap the proposed licence and have the status of native title parties:
Maduwongga People (WC99/9) – 100% overlap;
Central West Goldfields People (WC99/29) – 100% overlap
On 14 December 2004 the Government party advised the Tribunal that it held correspondence advising of an arrangement between the grantee party and Golden Mile South Limited (‘GMS’) for proposed licences P26/3220 to P26/3230 to be assigned to GMS upon grant and that an agreement regarding the grant of those tenements had been reached between the Widji People and GMS. On 21 December 2004 Mr Jerome Frewen, the native title party representative, advised the Tribunal that as a result of this agreement the objection application in respect to P26/3220 to P26/3230 was withdrawn. Henceforth my reasons for determination apply only to the remaining proposed licences the subject of the objection application. It should be noted however that P26/3220 to P26/3230 are still subject to an active objection application by the Central West Goldfields People (WO04/81) and until that matter is finalised the Department of Industry and Resources will not be in a position to grant those proposed licences.
On 31 May 2004 the Central West Goldfields native title party also lodged expedited procedure objection applications with the Tribunal in relation to the proposed licences (WO04/80 to WO04/83 inclusive). WO04/80 (in relation to P24/3861 to P24/3866 inclusive) was withdrawn on 15 November 2004 following an agreement between the Central West Goldfields native title party and the grantee party. I infer from evidence given in other objection inquiries that this agreement was the Central West Goldfields Alternative Agreement (‘CWAHA’) and not the Regional Standard Heritage Agreement (‘RSHA’) referred to below, both of which have been in evidence before the Tribunal. Objection numbers WO04/82 (P26/3240 and P26/3241) and WO04/83 (P27/1630 to P27/1636 inclusive) were dismissed pursuant to s 148(b) of the Act on 18 March 2005 for failure within a reasonable time to proceed with the objection applications and failure to comply with a direction by the Tribunal. WO04/81 (P26/3220 to P26/3230 inclusive) remains active while parties attempt to negotiate an agreement over the grant of those proposed licences. No objection was lodged by the Maduwongga native title party.
Conduct of the inquiry
On 31 May 2004 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 (i.e. 24 July 2004) 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. Government party compliance was due on 15 November 2004 and native title party compliance on 22 November 2004. On 13 July 2004 the Tribunal was advised by Mr Nathan McMahon, the grantee representative, that the grantee had executed a RSHA and therefore considered that it had fulfilled its obligations in relation to heritage protection, in accordance with State policy. The RSHA was executed in favour of the Central West Goldfields native title party and forwarded to them by the grantee party. It was not sent to the Widji native title party. Because the Widji native title party does not accept the RSHA, whether or not executed in their favour, and the grantee party is not prepared to consider an alternative agreement, Mr McMahon requested that the matter be determined by the Tribunal. Directions were eventually made for Government party compliance on 19 November 2004 and native title party compliance on 26 November 2004.
At the request of Mr Frewen dates for compliance were subsequently amended on two further occasions. On 3 December 2004, I also considered and rejected an application by the grantee party, supported by the Government party, for dismissal of the objection application pursuant to s 148(b) of the Act because the native title party had not complied with the directions on the basis of Mr Frewen’s argument that Widji law business hampered the gathering of evidence between the period December 2004 to February 2005. On 15 December 2004, by which time only partial compliance in the form of a Statement of Contentions had been received from the native title party, I issued final directions allowing all parties leave to submit any further contentions and evidence in the light of my then forthcoming determination 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'). The present objection inquiry has similar issues regarding the relevance of the RSHA in expedited procedure inquiries to those in Linda Champion. In so permitting contentions on this subject, the native title party was also afforded one final opportunity to fully comply with directions by way of provision of affidavit evidence.
Contentions and evidence from the Government party and the native title party have now been submitted. The grantee party has sought to rely on contentions submitted by the Government party. Mr Frewen requested that the objection be heard ‘on country’. The Government and grantee parties have submitted that the matter should be dealt with ‘on the papers’ before the Tribunal. In recent times, in Western Australia, the Tribunal has not found it necessary to conduct an oral hearing ‘on country’ in expedited procedure matters and there is nothing peculiar to this matter which makes such a hearing necessary. I am satisfied that I can adequately deal with the matter on the papers in accordance with s 151(2) of the Act.
Legal Principles
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.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of a prospecting 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.
The Regional Standard Heritage Agreement (RSHA)
Throughout the preliminary proceedings the grantee party maintained that it had followed the Government party’s procedures relating to the RSHA. These policies and procedures and their relevance to expedited procedure objection inquiries has been considered in Linda Champion (at [15]-[35]). In the circumstances of this matter the RSHA is evidence of the grantee party’s positive intentions regarding the protection of sites of significance despite the Widji native title party’s refusal to accept an agreement in this form. However, it is not a binding agreement with the Widji native title party.
Evidence in relation to the proposed act
Government party documentation establishes the underlying land tenure of the proposed licences to be a mixture of unallocated Crown land, pastoral leasehold, Crown Reserves, and railway and road Reserves. The majority of P24/3861 to P24/3863 comprises unallocated Crown land, while the majority of P24/3864 to P24/3866 and P27/1633 to P27/1636 is overlapped by pastoral lease. P26/3240 and P26/3241 primarily comprise Crown Reserve 8767 for the purpose of a Common, and the tenure underlying P27/1630 to P27/1632 is a mixture of Crown Reserves, road reserves, unallocated Crown land and pastoral lease.
The Aboriginal community of Ninga Mia is located approximately nine kilometres south westerly of P26/3240 and P26/3241. There are no Aboriginal communities within the external boundaries of the proposed licences. There are no sites on the Register kept by the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) on or in the vicinity of the proposed licences.
Tengraph ‘Quick Appraisals’ documentation provided by the Department of Industry and Resources indicates that the area of land subject to P24/3861, P24/3866, P26/3241 and P27/1630 to P27/1633 inclusive is also partially overlapped by ‘live’ and ‘pending’ Prospecting Licences, Miscellaneous Licences and Mining Leases. No current or future activity is recorded in the case of the remaining area the subject of this determination. However, ‘Quick Appraisals’ analysing historical activity and sourced by the Tribunal show considerable past activity in the entire region between 1890 and 2003. Further, the entire area of the proposed licences is subject to a ministerial direction pursuant to s 57(4) of the Mining Act, which prohibits the making or grant of an exploration licence on the basis that extensive mining is being carried out. It is clear that the entire area has been subject to considerable exploration and mining activity and there is continued interest in the area.
In addition to the Central West Goldfields native title party objections referenced in para [6], a further three objections by the Widji native title party have been received from the period 2000 to date in relation to tenements overlapping or abutting the proposed licences, one being resolved by way of agreement and the remaining two dismissed pursuant to s 148(b) of the Act.
The grant of the proposed licences will be subject to the standard endorsement and conditions applicable to all prospecting licences in Western Australia as previously set out in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner at [16]. Further conditions apply to those proposed licences overlapping pastoral land (the grantee must advise leaseholders prior to undertaking airborne surveys or ground disturbing activities), those overlapping Miscellaneous Licences (access to be maintained and no interference caused), those bisected by rail corridor land (mining, installations and use of explosives within set parameters not permitted without State Mining Engineer approval and right of access to be maintained) and those within which Geodetic Survey Stations are located (no interference).
On 18 February 2005, after consideration of my decision in Linda Champion, the Government party advised that the following extra condition (‘the proposed condition’) would be applied to the grant of the proposed licences:
‘The Licence, if so requested in writing by the Central West Goldfields People, the applicants in Federal Court application no. WAG65 of 1998 (WC99/29), such request being sent by pre-paid post to reach the Licensee’s address [see below for respective addresses] not more than ninety days after the grant of the licence, shall within thirty days of the request execute in favour of the Central West Goldfields People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’
The explanation provided by the Government party for the imposition of a condition relating to the Central West Goldfields native title party as distinct from the Widji naïve title party (the objectors in this matter) is as follows:
‘The Government party will only place a condition that the Grantee party enter into one heritage agreement per mining tenement application in order to avoid the otherwise prohibitive costs that may arise where more than one heritage survey is required.’
Evidence provided by the native title party
In support of its objection and contentions, the native title party relies on two affidavits sworn by Mr Leonne Dale Velickovic at Kalgoorlie on 4 January 2005. The general information provided in paragraphs 1-9 of both affidavits, and 13-18 in the case of the affidavit relating to P24/3861 to P24/3866 (‘Affidavit 1’) and 14-19 in that relating to P26/3240-41 and P27/1630 to P27/1636 (‘Affidavit 2’) is similar to the information contained in the affidavit submitted in relation to WO04/61 at [20] (with the exception of the proposed licence numbers) and will not be included below. Paragraphs 10-13 of Affidavit 2 are set out hereunder:
‘10.Because of the group’s long association with lands including the tenement, it has been my custom to visit the Kanowna/Four Mile Hill area to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements on a regular basis. This I do whenever I can arrange transport to the area – for example on weekends. The grant of the tenements will result in large areas of their traditional lands there being closed off to the Objectors whilst exploration and associated activities are being carried out. Intensive exploration will lead to the evacuation of the area by wild game and vegetable foods and fruits will inevitably be destroyed.
11. Our Elders have been accustomed to bring young group members and other children regularly to the Kanowna/Four Mile Hill area and to the surrounding country for the purpose of instructing them on the procurement of traditional vegetable foods, fruits and bush medicines
12. I am advised be female members of the group with seniority of their social responsibility of maintaining the spirituality of the land within the traditional lands of the Widji people, including the lands of the Widji people that are located within the proposed tenements. This responsibility is particularly grave and onerous where there are women’s Tjukurpa (Dreaming) sites concerned. As noted below, a women’s Dreaming saga passes through the country in which the leases are located. They hold this responsibility firstly, on behalf of the entire community of the Widji people and secondly, as representatives of a wider universe of Aboriginal people. This spiritual aspect of the community’s link with the land is rooted in activities conducted upon the land. Exercise of the rights of the Grantee Party within the tenements is highly likely to lead to a destruction of part or all of the spirituality of the land in question, firstly through prevention of regular community activities there and secondly, through destruction of sacred ad ceremonial sites there and particularly through the fouling and spiritual desecration of water sources. Unquestionably the social cohesion of the community in question, based as it is upon the spiritual link with the land as nourished by us and other members of the Widji people, will be diminished and commence to disintegrate, as has happened historically to other Aboriginal communities that lost their link with the land. I therefore contend that this interference with their community or social activities is substantial in nature, as it will lead to a process where our link will be broken, with detriment to our cohesion as a community.
13. I am aware that the tenements contain, or are located in close proximity to, sites of extremely high cultural and historical significance to our people. There are two secret/sacred women’s Dreaming sites in the vicinity of Four Mile Hill which have already been registered in the Department of Indigenous Affairs’ Register of Aboriginal Sites, namely sites numbers 18972 and 18973. Traditional Aboriginal religious sanctions prevent any further information in regard to these sites being written in this document, but the female elders of the Widji group would describe them to the Court, if an all-women hearing is arranged on country in the future. These two sites are linked with registered Aboriginal sites Ninga Mia Hill, Telstra Microwave Hill and Mount Charlotte in one direction and with Mount Burgess and two sites that have been obliterated by mining activities in the past in the other direction. There are also two as-yet unregistered sites on this Dreaming track, some of which are between Ninga Mia Hill and Four Mile Hill, in the country in which the tenements are located. In addition, traditional water-sources are located in the vicinity of Kanowna townsite. The pre-European usage is evidenced by occasional scatters of traditional stone artefacts in the area – two of which are registered as Aboriginal sites numbers 15012 and 15013. These are visible today and the Widji people can bring the Court to view them. It is highly likely that there are other such traditional cultural sites either in or in very close proximity to the tenements. The immanent spirituality of the land, to which the Widji and other Aboriginal people are linked by an unbroken family line back to the Tjukurpa, is made manifest in these water-sources and the associated cultural material is a link with the ancestors.’
Paragraphs 10-12 of Affidavit 1 depose that it is also the custom of Mr Velickovic and Widji Elders to visit the Broad Arrow and Mulgarrie area, including the “creeks which drain from there into the King of the West Lake”, to hunt, gather and instruct young group members, and Mr Velickovic expresses the same concerns regarding the evacuation or destruction of food sources and the denial of access as those expressed in paragraph 10 and 11 above.
Mr Velickovic is one of five persons named as part of the applicant and registered native title claimant for the native title claim of the Widji People. His evidence is uncontested and I accept it including his statement that he is one of two senior men of the Widji People, with attendant responsibilities towards the guardianship of the land with which the native title party is associated.
Community or social activities (s 237(a))
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. Some evidence in this regard is provided in paras 9-12 of Mr Velickovic’s affidavits but with the exception of information detailing the frequency of visits to the Kanowna/Four Mile Hill (para 10, Affidavit 2) assertions are of a general nature, with no evidence provided as to regularity of these hunting, gathering and educative visits, the details of them, or the number of claim group members involved in the activities. Further, the grant of the proposed licences does not confer exclusive rights 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 prospecting activities and the wide area over which any hunting or gathering may occur. Any restriction would also be temporary.
With respect to the contention that the spirituality of the land will be destroyed by exploration activities, 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. The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) and 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) and I adopt those findings here. In this matter Mr Velickovic further asserts that “traditional punishments will probably be levelled against [those responsible for that country]”. The same evidence arose in WO04/61 and as in that matter I adopt my findings in Linda Champion at [65]-[66] and Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner (‘Internickel’) at [39]-[40]. Despite a well documented history of exploration and mining in the Goldfields area there is no evidence that traditional punishment has in fact been administered in the circumstances outlined by Mr Velickovic.
The other difficulty with the native title party’s contentions is that Mr Velickovic says that a proper heritage survey (in his view one carried out according to a Widji Heritage Agreement (‘WAHA’)) will ensure that the Widji peoples’ responsibility to look after the country is met. In this case I am satisfied that a heritage survey involving the Central West Goldfields native title party (whose claim also overlaps the entire subject area) will be carried out in accordance with the agreement (CWAHA) which led to the withdrawal of their objection WO04/80. This will ensure heritage protection on the land the subject of P24/3861 to P24/3866 inclusive. In the unlikely event that there are concerns about this agreement, and in relation to the balance of proposed licences, the Central West Goldfields native title party can insist on a heritage survey carried out in accordance with the RSHA because of the proposed condition which will be imposed on the grant. I am satisfied that surveys carried out in accordance with the RSHA or CWAHA will identify Aboriginal heritage including sites of particular significance to the Widji native title party (see paras [32]-[33] below), thus ensuring in this respect that the country is looked after.
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]-[27]; Walley at [12]). Pastoral activities will already have had an impact on the traditional community and social activities of the native title party, as would much of the Reserve tenure in the subject area. Further, the entire region has a long history of past, present and future mining activities, and while the concerns of claimant groups in the area are evidenced by objections lodged in relation to those acts, these objection applications have in all cases been resolved either by withdrawal of the objection or dismissal for failure to proceed with the objection. While I accept that exploration activities can be detrimental to Aboriginal community activities, with the exception of a general statement in Mr Velickovic’s evidence (para 13, Affidavit 2) that two sites have been “obliterated by mining activities in the past”, which is of no assistance to me without information as to when, where, how and by whom this occurred, there is nothing before me evidencing a prior detrimental affect on community and social activities in this area.
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))
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 that no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean that there may not be such sites 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) applies to Aboriginal sites whether or not they are on the Register.
In relation to s 237(b) of the Act, the Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act, to which the grantee party’s attention is drawn upon grant of the proposed licences, would protect areas or sites of particular significance from interference. 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) which is sent out to each grantee of an exploration or prospecting licence 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. As in the past, the Tribunal will continue to 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.
At para 13 of Affidavit 2, Mr Velickovic asserts that the proposed licences “contain sites of extremely high cultural and historical significance”, including two “secret/sacred” women’s Dreaming sites said to be registered as site numbers 18972 and 18973. Tribunal mapping reveals these sites to be approximately nine kilometres north north easterly at their closest point from the nearest proposed licence – P27/1635. Mr Velickovic also deposes that these sites are “linked” with registered sites Ninga Mia Hill, Telstra Microwave Hill and Mount Charlotte which are approximately six kilometres south west of P26/3241, the closest proposed licence. This information does appear to support the assertion that the connecting Dreaming track does pass through the group of proposed licences numbered P26/3240-3241 and P27/1630-1636, and I am also prepared to accept Mr Velickovic’s statement that there may be further unregistered sites on that Dreaming track. Registered sites 15012 and 15013 in the vicinity of the Kanowna townsite are also evidenced by mapping to be around five kilometres north north east of the same group of proposed licences, and are not within the subject area. Mr Velickovic also asserts that traditional water sources and associated artefacts may exist in the vicinity of the Kanowna township some 5 kilometres to the north-east of the nearest proposed licences (P27/1632 and P27/1633). As to whether these sites are of particular significance, Mr Velickovic’s evidence lacks detail as to their nature, necessarily in the case of the two identified women’s sites because of “traditional Aboriginal religious sanctions”. Nevertheless, the possibility exists that there are sites of particular significance to the native title party on the proposed licences associated with the dreaming story referred to by Mr Velickovic.
In relation to the group of proposed licences numbered P24/3861 to P24/3866, evidence as to the existence of sites of particular significance is scant. Mr Velickovic makes generalised assertions about sacred waterholes and other water-sources (para 3.3 of the Statement of Contentions of Objectors) and shrines and holy places (para 8 of Affidavit 1) but these statements lack specificity to the extent that I am unable to find whether any sites of particular significance are to be found on or in the vicinity of that group of proposed licences. Certainly there are no registered sites in the area.
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 to the native title party.
My finding is that there is nothing in the circumstances of this case including the location and nature of any sites which would render the regulatory regime ineffective even assuming there are sites of particular significance located on the proposed licence areas. The known and named sites on the Register are such a distance from the proposed licences that interference with them is not likely. Mr Velickovic says that a full Aboriginal heritage survey is necessary after which the grantee party would be free to carry on exploration. While the grantee party has submitted no written submissions on its own behalf, it has by way of oral evidence expressed its intention to comply with the Aboriginal Heritage Act and conduct a heritage survey where intensive work is undertaken.
I have previously considered the issue of the relevance of the RSHA and the Government party’s proposed condition in expedited procedure inquiries (Linda Champion (at [29]-[35])). The situation with respect to the RSHA and the Government party’s proposed condition is similar to that in WO04/61 (at [34]) and I adopt those findings here. In relation to P24/3861 to P24/3866, because of the executed agreement which led to the withdrawal of WO04/80 there is no doubt that the grantee party will consult with the Central West Goldfields native title party and conduct a heritage survey with them in accordance with the CWAHA. If the Central West Goldfields native title party wishes to ensure heritage protection for the balance of proposed licences the Government party’s proposed condition will enable protection by way of the RSHA.
The Government party’s reason for the condition being imposed in relation to only one native title party is to avoid imposing prohibitive costs on the grantee party I can only conclude from this that the Government party considers that Aboriginal sites will be protected by one survey with the Central West Goldfields native title party. In WO04/61 (at [35]) I found that the Widji and Central West Goldfields native title parties shared a common traditional custodian, the late Mr Phil Donaldson. As the Central West Goldfields claim (and the Widji claim) both completely overlap the area of the proposed licences I am satisfied that a survey carried out by the Central West Goldfields native title party is likely to provide adequate protection to sites of particular significance including those of particular significance to the Widji native title party. The situation and findings may be different if the requirement to conduct an Aboriginal heritage survey was only imposed on a native title party whose claim overlapped a small proportion of the prospecting licences area (see Linda Champion at [31]) or where there were persons in the different claim groups who had little affinity with each other.
In addition to protection afforded by the conduct of heritage surveys in accordance with the CWAHA, the grantee party is aware of his responsibility under the Aboriginal Heritage Act to ensure protection of all sites. Being aware of its responsibilities I accept that the grantee party will consult with the Widji native title party about these matters if the tenement is granted to ensure adequate coverage of the heritage survey. Given the nature of the sites which may exist on the tenement and the Government party’s regulatory regime which apply to them I can see no real risk that they will be interfered with.
Major disturbance (s 237(c))
Section 237(c) of the act requires a predictive assessment on whether the grant of the proposed licences or the prospecting activities undertaken upon grant of the licences are likely to involve (in the sense that there is a real risk of) major disturbance to land, 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.
The native title party contends that the activities permitted by the grant of a prospecting licence would constitute major disturbance to land. In Linda Champion (at [77]-[79]) I found the regulatory regime imposed by the Mining Act and conditions imposed sufficient to ensure that major disturbance to land was not likely to result from activities permitted by the grant of an exploration licence. The activities permitted by the grant of a prospecting licence and regulatory regime applicable to them are generally the same as for an exploration licence but less intrusive in that the quantity of material which can be removed is 500 tonnes instead of 1,000 tonnes for an exploration licence (see Walley at [32]). The findings in Linda Champion were made taking account of similar contentions and evidence to that provided in this matter 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 immediate vicinity; that seven of the proposed licences are largely or entirely over pastoral lease and a further five encompass smaller portions of pastoral land where ground disturbance has already and will continue to be carried out; the extensive history of prior mining and exploration activity; the Government party’s regulatory regime (Mining Act) and conditions imposed dealing with ground disturbing activities and rehabilitation; and the presumption of regularity in that there is no evidence to suggest that the grantee party will not comply with its obligations under the regulatory regime. There is no detailed 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.
The native title party made the further particular contention that a permissible quantity of blasting or bulldozing (eg. ‘ten metres by ten metres’) if performed on a geographical feature said to the established in the Creative Era by Widji Ancestors would constitute major disturbance in the view of all Aboriginal people associated with that particular story or song line. I dealt with a similar contention in Linda Champion (at [79]) and WO04/61 (at [40]). While I accept that the disturbance of a special site would constitute major disturbance to land by the standards of the broader community there is no evidence that such an event is likely to occur in this case. Such a place would be an Aboriginal site and protected in the manner described above.
Determination
The determination of the Tribunal is that the grants of Prospecting Licences P24/3861, P24/3862, P24/3863, P24/3864, P24/3865, P24/3866, P26/3240, P26/3241, P27/1630, P27/1631, P27/1632, P27/1633, P27/1634, P27/1635 and P27/1636 to Cazaly Resources Ltd are acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
12 April 2005
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