Leonne Velickovic/Western Australia/Centaur Mining & Exploration Ltd

[2001] NNTTA 6

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic/Western Australia/Centaur Mining & Exploration Ltd, [2001] NNTTA 6 (15 January 2001)

Application No:        WO00/203

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 (native title party)

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The State of Western Australia (Government party)

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Centaur Mining & Exploration Ltd (grantee party)

REASONS FOR A DETERMINATION

Tribunal:       The Hon E M Franklyn QC
Place:             Perth
Date:              15 January 2001

Catchwords: Native Title – future act – proposed grant of prospecting licences – expedited procedure objection application – finding on evidence that each of the criteria of s 237 met and that the proposed future acts attract the expedited procedure.

Legislation:Native Title Act 1993 (Cth) s 237, Aboriginal Heritage Act 1972 Mining Act 1978 (WA),

Background

1. On 4 February 2000 the State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (the Act) of its intention to grant to Centaur Mining & Exploration Ltd (the Grantee) prospecting licences 16/2062, 16/2063 and 16/2064, the notice containing the statement that the State believed each such grant to attract the expedited procedure.

2. On 8 February 2000 the above-named native title party, one of the claimants under Native Title Application WC98/27 and on behalf of the Widji people, (the Objector), lodged objection in respect of each such proposed grant to the inclusion in such notice of the said statement on the grounds that each fails to satisfy the criteria prescribed by s 237(a), (b), and (c) of the Act. The objection contained the further ground that the grants would “interfere with the native title holders enjoyment of their customs and their access to enjoyment of the resources of the lands and waters”. Unless such ground can be said to allege a failure to satisfy one or more of the said criteria, it is not relevant to the present determination.

3. At a preliminary conference held on 11 July 2000 the Tribunal made directions which were subsequently amended on 21 July 2000. As amended they required the State to provide, on or before 8 August 2000, inter alia, a topographical map showing the location and areas of each of the proposed licences, any registered sites under the Aboriginal Heritage Act 1972 on or in the vicinity of such areas, the boundaries and tenure of the lands within and overlapping such areas, particulars of Aboriginal communities within and in the vicinity of the same and other specified particulars and documents. The Objector was directed to provide on or before 15 August 2000 a statement of its contentions to include a statement of the nature and location and the particular significance of sites or areas of significance on or adjacent to the proposed tenements, a statement of the community or social activities it contended were likely to be interfered with by any such grant, copies of all documents relevant to the inquiry, including any affidavit to be relied upon and a statement of the evidence of any witness intended to be relied upon. The Grantee was directed to provide, on or before 22 August 2000, a statement of contentions, a copy of all documents and affidavits relied upon, and a statement of the evidence of any witness to be relied upon. Each party was directed to provide, on or before 25 August 2000, an outline of legal submissions as to the effect of s 237 of the Act. A tentative hearing date, in the event the determination was not to be dealt with “on the papers”, was set for 4 September 2000.

4. The State duly complied with the directions made of it.  The Objector provided its statement of contentions on 14 August 2000 but no other documents.  The statement of contention did not address the directions as to sites and areas of particular significance and community or social activities of the native title party.

5. Further directions were made on 25 August 2000 requiring the Objector to “fully comply” with the amended directions of 21 July 2000 on or before 8 September, on which date a listing hearing, if necessary, would be held.  The Grantee advised that it would rely on the material provided by the State.

6. A listing hearing was held on 8 September, at which the Tribunal was advised that there was a change of solicitors and representation of the Grantee.  The Objector had still not complied with the directions of 21 July 2000.  The matter was adjourned to 22 September 2000 to enable such compliance and the issue of the party’s representation to be finalised.

7. On 22 September 2000 an affidavit, affirmed that day by the Objector, was provided. The matter of the Grantee’s representation was still uncertain and the hearing was further adjourned to 28 September 2000, on which date the Tribunal was advised that the Grantee’s representation had been finalised but its new counsel required time to obtain full instructions.  The matter was further adjourned to 13 October 2000. On 29 September 2000 a further affidavit, in identical terms to that of 22 September and affirmed on that day by the Objector, was also provided.

8. Following the adjourned hearing on 13 October 2000, I was appointed the member to determine the objection.  The matter was called on on 10 November 2000.  The Objector advised that he was content for the matter to be heard ‘on the papers’ but wanted the opportunity to file further affidavits.  The Grantee’s counsel likewise sought an adjournment to file documents and contentions.  Directions were made that the native title party provide a statement of any further evidence, verified by affidavit, and any other material on which it intended to rely, by 16 November 2000 and that the Grantee provide, on or before 23 November 2000, any contentions, documents and evidence, verified by affidavit, on which it intended to rely.  The matter was adjourned to 23 November 2000.

9. On 23 November the Tribunal was informed there had been a further change in the control of the Grantee and its representation but that it did not intend to file any further documents.  The Tribunal required formal advice of authority for the new representative to represent the Grantee which counsel undertook to provide.  The Objector’s representative advised that the Objector would not file any further documents.  The Grantee sought, and was granted, leave to cross-examine the Objector on his affidavit of 22 September at the hearing and it was agreed that this could be done by teleconference.  The Objector’s representative could not advise when the Objector would be available for such cross-examination and directions were made that the Objector advise on or before 4.00 pm on 27 November 2000 the place, date and time at and on which he would be available for cross-examination by teleconference.  The matter was then adjourned to 28 November 2000.

10.  The requisite authority for the representation of the grantee was duly received.

11.  The Objector subsequently advised that he would be available for cross-examination by telephone at 2.00 pm on 30 November.  This date was not suitable to the Grantee whose counsel was then overseas.  The parties were requested to agree a date.  The matter was subsequently listed for 15 December 2000 on which date the Objector was cross-examined by the Grantee’s legal representative and re-examined by his own representative.

12.  The Tribunal is satisfied that the issues for determination of this matter can be adequately determined on the documents and other material provided to it together with the transcript of the cross-examination and re-examination of the Objector on 15 December, without holding a hearing.

The State’s evidence

13.  The unchallenged documentary evidence provided by the State to the Tribunal and other parties reveals the proposed tenements to each be situate on pastoral lease land and to abut one another;  that there are no Aboriginal communities situated on or in the vicinity of any of the proposed tenements and no sites within the meaning of the Aboriginal Heritage Act 1972 (WA) registered on the register of Aboriginal sites as being situate thereon; that the licences will each carry an endorsement drawing the licensee’s attention to the provisions of the Aboriginal Heritage Act 1972 which contains provisions for the protection of Aboriginal sites, whether registered or not, and will be subject to specified conditions controlling the use of machinery and for the rehabilitation of the land; and that the provisions of ss 46 and 25 of the Mining Act 1978 (WA) will apply to the grant. I do not set out the provisions of those sections which are set out in general terms in the State’s contentions.

The Objector’s Evidence

1. Although the Objector has lodged two affidavits identical in content, I refer to them as “the affidavit”.  The affidavit filed by the Objector is in terms precisely identical to affidavits filed by him in respect of several other expedited procedure objection applications (hereafter referred to as “objection applications”) lodged by him on behalf of the Widji people.  It does not identify specifically the location of the proposed tenements in respect of which the objection is made, nor, save for its title, does it identify the Grantee to which it refers.  It is so expressed that it can be used as a “pro forma” affidavit requiring only a change in title to be suitable for any such objection.  That does not necessarily mean that its contents are not valid in respect of each proposed tenement in respect of which it is, and has been, used.  Its contents are set out hereunder.

   “I, Leonne Dale Velickovic … affirm and say as follows:

   1.   That I am an Applicant for a determination of native title in relation to the area of land and waters (affected by the application of the Grantee Party).

   2.   I believe that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application of the Grantee Party.

   3.   I believe that none of the area covered by the application of the Grantee Party and claimed by the native title claim group is also covered by an entry in the National Native Title Register.

   4.   I believe that all the statements made in the native title claim application are true.

   5.   I am authorized by all the persons in the native title claim group to make these statements in relation to the claimed area and to deal with the matters arising in relation to it.

   6.   I have throughout my lifetime traveled [sic] and camped throughout the area applied for by the Grantee Party and claimed by the group on a regular basis.  Often I traveled [sic] in company with other members of the group and with our predecessors when they were alive.  Often I visited the places and the sites of significance within the claimed area, which sites were revealed to us by our predecessors and their ancestors.  The significance of the same, and the rituals that were associated with them, were taught to me.  I visit them to engage in ritual activities and to carry out the duty of caring for these places.  For cultural reasons it is not permitted to publicly disclose the nature of these sites, as this is culturally offensive and may lead to traditional punishment.

   7.   I together with members of the claim group have regularly hunted in the area applied for by the Grantee Party and claimed by the group for kangaroo, emu, goanna, honey ants and karlkurla in the season.  I was taught to hunt by the old people and how to cook and eat what we caught in the traditional manner and our responsibility to share it among our relations in the customary way.

   8.   I and members of the group travel to the area the subject of the application by the Grantee Party within the native title claim to procure resources for making spears artifacts [sic] and other utensils used for traditional customs.  These tools are used together with modern tools for the purposes of hunting and gathering.

   9.   I travel to the area the subject of the application by the Grantee Party and within the native title claim to procure food, medicine and resources for ritual decoration as shown to me by the old people.  These include the gathering of native seed for crushing for food preparation.

   10.    I have been taught many stories of the creation of the area the subject of the application by the Grantee Party within the native title claim.  Some of these stories have been depicted on body painting and are of special significance to members of the group.  Some of these cannot be disclosed as this will offend our culture.”

15.  I find the Objector’s use of the expression “the claimed area” in paragraphs 5 and 6 of the affidavit to be ambiguous in that, in the context of the affidavit and with knowledge that affidavits in identical terms are, and have been, used without alteration for several different objection applications within the area of WC98/27 without specific identification of the land the subject of the proposed relevant tenements, it can be taken to refer equally to the land the subject of the proposed tenements and that the subject of Native Title Application WC98/27.  The expression “the area applied for by the Grantee Party” also used in paragraphs 6 and 7 and the expression “the area the subject of the application by the Grantee Party” used in paragraphs 8, 9 and 10 are sufficiently specific to identify the tenement areas if one applies that description to each proposed tenement and appear to have been deliberately used for that purpose.  That specificity, and the fact that the Objector’s statement of contentions refers to the land the subject of WC98/27 as “the claim area” and the context in which the expression “the claimed areas” is used in the affidavit leads me to conclude that it refers to the area the subject of Native Title Application WC98/27.  I find that neither paragraph 6 nor any other paragraph of the affidavit provides evidence of relevant sites on or adjacent to the lands the subject of the proposed tenements.  Furthermore, the affidavit does not identify in any way the nature or particular significance of any site of significance to which it refers.  The use of identically worded affidavits in other objection applications without specific identification of the land suggests that the hunting, camping and gathering of resources, said in this specific affidavit to take place within “the area applied for by the Grantee Party” and the “area the subject of the application by the Grantee Party” take place throughout the area of WC98/27 at least on any ground which is or has been the subject of an objection application and, presumably, elsewhere within that area.  It is not suggested by the affidavit that the carrying on of any such community or social activity has been interfered with in any way by other grants or will be likely to be directly interfered with if the subject tenements are granted.

16.  It is also of significance in weighing the merits of the Objector’s affidavit evidence that he relies on cultural reasons for not making “public disclosure” of the nature of the sites he speaks of in paragraph 6.  This ignores the fact that the directions made (and ignored) requiring a statement of the nature and location of sites or areas of significance on or adjacent to subject tenements, identifying in each case the particular significance of the site or area and a statement of the community or social activities contended to be likely to be interfered with directly by the proposed grants, were subject to a direction that “documents claimed to be of a confidential nature are to be placed in a separate sealed envelope, marked “confidential” and provided to the Tribunal with a list indicating the nature of the documents and the manner in which it is proposed they may be used by the Tribunal”.  The Objector has apparently chosen, for whatever reason, to not take advantage of that direction.

Despite the directions made, neither the affidavit nor the contentions filed by the objector include any statement of the nature or location of sites of particular significance on or adjacent to the subject tenements.  Nor do they identify the particular significance of any sites or include any statement of the community or social activities contended to be likely to be interfered with by the grants.

17.  Hereunder I set out the Objector’s evidence in cross-examination relevant to the community and social activities of the native title claimants (transcript pp 3-4)

“Mr Velickovic, you’ve deposed to travelling and camping through the claim area.  The claim area is quite large.  Can you tell the Tribunal please, first of all, just for all our benefits, perhaps you could tell us how you travelled to the particular area that is the subject of this application for a prospecting license?---Well, so far as I’ve lived in Coolgardie and Kalgoorlie for most of my life, I travelled there by car because of the time and date of it and yeah, I’ve been there all my – I’ve – I’ve – I’ve hunted throughout the area and ate bush tucker and – well, the name Kununun in itself, it’s pronounced Koonunun as in – it means the rock hole and that area surrounding that rock hole is, yeah, we travelled around all our lives. 

Do you know exactly the area – I mean, we’re not talking about ---? --- Yeah, I’m talking about P16/2062 and 2064 and 2063. 

And when was the last time you were there on that particular piece of land?---Last week. 

And the time before that?---Look, I’ve been sort of – like I said, ever since I’ve been here, my family, we always go out that way and we travelled around it because that’s where the main hunting ground is. 

What, on that particular piece of land the subject or the entire area?---The entire area including that particular land.

I appreciate, look, my client, Mr Velickovic, is actually quite concerned to, and I’m actually instructed to make this very clear.  It’s concerned to respect the exercise of any such rights over the claim area but it has some additional concern that in relation to that particular area, that is not a particular area that is commonly visited for the exercise of those sorts of rights, but what I’m trying to get you to do is to tell me whether that particular piece of land is a piece of land – well, I withdraw that.  Just can you tell me how often you would visit that particular piece of land and go hunting and carry on your activities on that particular piece of land as opposed to the broader claim area?---Well, I would travel on that particular land every time I need to go hunting because that particular land has – has some of the - - -

Well, because that’s the way you get there.  Is that what you’re saying?---Hey?

You travel on that particular piece of land because that’s they way you get there and therefore you need to go that way in order to get to where you want to go to undertake these activities.  Is that what you’re saying?---No, I’m not saying that there.  I’m saying that the particular land that you’re talking about has been – has been used and still used today by the Widji people for their hunting and their gathering of native fruits.”

At transcript pp 12 and 13:

Now, could I just ask you then, Mr Velickovic; the rock hole that you were referring to; that has some significance to the activity you undertake in the claim area, did I understand you to say?---Well, it was that main water rock hole for that area.  I mean, when the people go out and hunt and that there, get their roos and that there, within that area they’ll come back to that rock hole and they’ll sit down and – because the water’s there.

So is that mainly where these activities take place?---No.  Yeah, the whole – well, I’m talking about the whole area.  P16/2062.  If you have a look at a map, it’s not very far from the rock hole, from Kunununning.

Yes.  The rock hole is not in the area of P16/2062 or 2063?---Well, no, yeah, but we have to go out and hunt the kangaroos somewhere so we’ll have to go to P16/2062 or 2064 or 2063 to get our kangaroos or whatever that we – that we catch on the time.

And then you come back to gather at the rock hole, is that right?---We don’t exactly have to go back to the rock hole.  We can gather right there, do our stuff right there.

You accept however that, if my understanding is correct, Mr Velickovic, that the rock hole is not actually on those - - -?---No, no, it’s not.

The Objector’s representative has confirmed to the Tribunal that the Objector’s reference to Kununun and Koonunun in the above quoted passage, said to mean a rock hole and area surrounding it, is in fact a reference to Kunanalling, which is shown on the Tengraph map provided by the State to the Tribunal and other parties as being approximately 6 kms in a southerly direction from the proposed licence P16/2063 and further from P16/2062 and 2064. 

18.  The said Tengraph map reveals the existence of a considerable number of current mining tenements in the near vicinity of and surrounding the three proposed licences and also in the vicinity of Kunanalling and the land between it and the proposed tenements to which no reference is made by the Objector.  There is no suggestion in his evidence, written or oral, of any relevant interference or major disturbance resulting from the presence of those tenements and affecting the community or social activities of the native title holders of which he speaks.  Indeed, his testimony is to the effect that such activities continue as always.

19.  I reject as having no merit the propositions put to the Objector in cross-examination and advanced to the Tribunal by the Grantee’s counsel that, if one of the elders from whom he learned the traditions of the land was a claimant in a separate native title claim over the same land and “had not sustained” any objection to the grant of the proposed tenements then the present objection is without basis, and further, that if that elder had lodged and subsequently withdrawn an objection then, again, the current objection “carries no weight”.  In my view, those conclusions cannot be drawn from the alleged facts on which they are based, which, in any event, were not established.

20.  In re-examination, the following questions were asked and answers given.

“Right.  Now, in respect to lodging objections, Mr Velickovic, what’s the main reason for lodging objections over, say, prospecting licenses like this?---Because why should I give them an opportunity to go out and dig up my land, without – without consulting me first?

Consulting you about what, Mr Velickovic?---About what they want to – for what they want to do, I suppose.

And is this because of any conflict that might arise with traditional knowledge that’s been passed down and sites and so on that exist on these tenements?---Yes, it is.

Okay.  In some cases, Mr Velickovic, in the past, where you’ve lodged objection, on some occasions you have withdrawn those objections, is that correct?  Why have you withdrawn those objections?  Is it because you’ve reached [sic] agreement with the parties concerned?---Yeah, because – yeah, I’ve – I’ve come to some agreement just like whoever, whoever’s deal with Centaur.  They’ve come to some agreement for them to pull objection off but Centaur obviously doesn’t want to deal, so.

Well, in respect of other parties that you’ve reached objection with, I mean, they have actually said:  we’ll organise a heritage survey or something like that.  Is that true?---Yeah.  Yeah.

And that’s been sufficient for you to then withdraw your objection?---Mm.”

That evidence even though, in the main, the result of leading questions, does not suggest any concern as to interference with community or social activities such as hunting, camping and gathering, nor of major disturbance to the land within the meaning of s 237(c). The thrust of that evidence appears to be that if a heritage survey is agreed upon so as to identify sites with, presumably, an agreement to protect them, then the objection to the grant will be withdrawn.

Conclusions

21. I find there to be no evidence sufficient to raise an inference of the likelihood of the grant interfering directly with the carrying on of the community or social activities of which the Objector gives evidence and that, on the evidence, the grant of the tenements is not likely to so interfere. I further find there to be no evidence of the existence on, or in the near vicinity of, any of the proposed tenements of areas or sites of particular significance within the meaning of s 237(b) of the Act and that consequently, on the evidence, there is no likelihood of relevant interference within the meaning of that sub-section. I further find on the evidence, that the grant of the proposed tenements is not likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance within the meaning of s 237(c) of the Act.

Determination

The determination of the Tribunal is that the grant of each of prospecting licences 16/2062, 16/2063, 16/2064 is an act which attracts the expedited procedure under the Act.  The objection is dismissed.

Hon E M Franklyn QC

Deputy President