Leonne Velickovic/Western Australia/Glen Allen Sinclair
[2001] NNTTA 14
•31 January 2001
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic/Western Australia/Glen Allen Sinclair, [2001] NNTTA 14
(31 January 2001)
Application No: WO00/299
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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Glen Allen Sinclair (Grantee party)
REASONS FOR A DETERMINATION
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 31 January 2001
Catchwords: Native Title – future act – proposed grant of prospecting licences – expedited procedure objection application – proposed tenement has common boundary on three sides with existing mining leases and boundaries identical with a former mining tenement and is in area substantially covered by mining tenements and close to a highway – insufficient evidence of relevant activities of native title claimants – no evidence of relevant sites – proposed grant found to attract the expedited procedure.
Legislation:Native Title Act 1993 (Cth) s 237, Aboriginal Heritage Act 1972 Mining Act 1978 (WA),
Background
On 22 February 2000 the State of Western Australia (the State) issued notice under s 29 of the Native Title Act 1993 (the Act) that it proposed to grant to the above-named grantee party (the Grantee) prospecting licence 15/4346 over 121.29 hectares of land 11 kms north-westerly of Widgiemooltha (the proposed tenement) the notice including a statement that it considered the grant to attract the expedited procedure.
On 3 March 2000 the above-named native title party, a claimant under native title application WC98/27 (the Objector) lodged an expedited procedure objection application (the objection) on behalf of the Widji People to the inclusion in such notice of such statement on grounds which can be summarised as that the grant did not comply with any of the criteria provided by s 237(a), (b), (c) of the Act.
On 27 July 2000 directions addressed to each of the above-named parties were made. They required the State to provide to the Tribunal and each other party on or before 21 September 2000 specified information and documents; the native title party to provide to the Tribunal and each other party on or before 28 September 2000;
the statement of contentions to include the nature and location of sites or areas of significance on or adjacent to the proposed tenement and the particular significance of each and, further, a statement of the community or social activities contended to be likely to be interfered with directly by the grant;
a copy of each document relevant to the inquiry, including any affidavit to be relied on; and
a statement of the evidence to be given by any witness for the native title party and details of where it is proposed such evidence be heard;
and the Grantee to provide to the Tribunal and each other party its contentions and all relevant documents including a statement of the evidence of any witness for the grantee.
It was further directed that each party provide legal submissions on or before 12 October 2000 on which date a listing hearing would be held, the matter to be heard on 30 October 2000 unless it was to be determined on the papers.
On 22 September 2000 the State complied with the directions addressed to it. The Objector did not comply with the directions addressed to it and had not done so by 10 October when the Grantee sought an adjournment of the proposed listing hearing of 12 October on the grounds that he was negotiating with the Objector. That listing hearing was adjourned to 10 November 2000, on which date it was further adjourned to 1 December 2000 on the Grantee’s advice that negotiations were proceeding.
On 14 November 2000 the Objector lodged an affidavit, affirmed by him on 13 November 2000 and, on 30 November 2000, a statement of contentions.
At the adjourned listing hearing held on 1 December, the Tribunal was advised by the parties that it was not possible to achieve agreement and the matter was referred to me for determination. The Grantee advised the Tribunal that it relied on the material provided by the State.
Contentions and Evidence – The State
The unchallenged material provided by the State reveals the land the subject of the proposed tenement to be unallocated Crown land, that there are no Aboriginal communities on or in its vicinity and that a search of the Aboriginal Sites Register under the Aboriginal Heritage Act 1972 reveals no sites registered in respect of it. It further points out that s 46 of the Mining Act 1978 (WA) sets out conditions which will apply to the proposed tenement and that the tenement is subject to the provisions of the Aboriginal Heritage Act 1972. It sets out further conditions which will be imposed on the grant directed to control of mechanised equipment on the proposed tenement and restoration of the lands the subject of the proposed tenement following exploration activities. It includes a copy of the application for the proposed grant which reveals it to be over land previously the subject of and with boundaries identical to “late surveyed MC [Mineral Claim] 993”. It also includes a Tengraph map showing the location of the proposed tenement in relation to surrounding land. This map reveals it to have a common boundary on its southern, western and northern boundaries with current mining leases, that the land to the east is the subject of pending applications for exploration licences revealing activity by mining interests in that area, and that the Coolgardie-Esperance Highway runs in a north-south direction at distances between 1½ and 2 kms to its east. The map also reveals the land to the north-west of its northern boundary for some 12 kms and that to the south, south-west and south-east for some 11 kms to be almost entirely taken up with existing mining tenements. The tenements to the south-east surround and extend east-west and south of the town of Widgiemooltha which is approximately 9½ kms from the proposed tenement.
The State contends the grant to be an Act attracting the expedited procedure in that it satisfies each of the criteria in s 237 of the Act.
The Objector – Contentions and Evidence
To a large extent, the contentions lodged by the Objector are addressed to the connection of the claim group with the land the subject of native title application WC98/27 and the effect of pastoral and mining activity generally on those lands. Like the affidavit filed by the Objector to which I subsequently refer, the contentions are identical to those advanced in a number of expedited procedure objection applications lodged by the Objector in respect of land the subject of that native title application. They allege that, as the result of such activities, the claim group has come to reside in townships, reserves and pastoral leases, that work on pastoral stations allowed members of the group to continue their hunter/gatherer tradition, although this was “reduced and impacted upon by the encroachment of Europeans”, that their ability to sustain a nomadic lifestyle according to their tradition has been severely impaired, and that “other members of the claim group continued to live traditional lifestyles with the last of such persons drifting into township residence in the 1970s”. They allege that the claim group “continues to exercise access to the land the subject of the native title application which is not affected by mining or town sites”. They contend that all members of the claim group presently have a “right” to freely access “the claim area” [WC98/27] “for hunting and camping purposes and using resources” and that “it is more likely than not that members of the claim group will seek to enjoy, at a minimum, the right to access the land the subject of the Act for at least camping and site inspections and care and maintenance during the term of the proposed licence.” I assume the word “Act” there used to refer to the future act, being the proposed grant. There is no specific claim of social or community activities on or in the vicinity of the proposed tenement. It is further contended that “all land within the claim [WC98/27] contains sites of significance”. There is, however, no attempt to identify sites of particular significance on or adjacent to the land the subject of the proposed tenement. It is also apparent from the contentions that it is not in issue that there are no Aboriginal communities resident on or in the vicinity of the proposed tenement.
When the contentions as to the claim group’s access to the land are considered with the unchallenged evidence of the Crown as to the location of the proposed tenement, the fact that it is on the site of a former mining tenement with identical boundaries and the proximity thereto of current and pending mining tenements, they do not support a claim that the grant of the proposed tenement will or is likely to interfere directly with the carrying on of the community or social activities of the holders to native title in relation to the land. As is apparent from the map provided by the State and referred to earlier herein, the proposed tenement is in an area heavily the subject of current and pending mining tenements. According to the contentions, it is consequently an area to which access has been discontinued. The claim of a “right” to access, whilst relevant to a native title application, is not a claim of a community or social activity. It is, of course, significant that the contentions do not identify any community or social activity contended to be likely to be interfered with directly by the grant despite the directions that they do so. Nor do they identify or support the existence of sites or areas of particular significance in accordance with their traditions to the native title holders on or adjacent to the land the subject of the proposed tenement despite the directions that they identify the same.
The Objector’s affidavit does not take the matter any further. As I have observed in a number of other expedited procedure objection applications lodged by the Objector on behalf of the Widji people in respect of land the subject of claim area WC98/27, the affidavit is in terms precisely identical to affidavits filed by him in each of such other objection applications. It does not identify specifically the location of the proposed tenement 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, however, that its contents are not valid in relation to any 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.”
11. 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 tenement, it can be taken to refer equally to the land the subject of the proposed tenement 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 area if one applies that description to the proposed tenement the subject of each objection application and appear to have been deliberately used for that purpose. That specificity, 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 area” 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 tenement. 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 indicates 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 or have taken 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 specifically alleged in the affidavit that the carrying on of any such community or social activity has been interfered with directly in any way by other grants (even the former mining tenement, the boundaries of which are identical with the proposed tenement) or will be likely to be directly interfered with if the subject tenement is granted. The statement of contentions however, as mentioned earlier, does refer to the effect of “encroachment of Europeans” and the “activities of the usurping settlers” reducing the claim group’s ability to continue its hunter/gatherer tradition and nomadic lifestyle. It does not follow however that the proposed tenement is likely to so interfere. The activities of others on and in respect of the existing tenements may well have already so interfered with the hunting/gathering activities of the native title holders that the grant of the proposed tenement cannot be said to interfere directly therewith.
12. 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 tenement, 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.
Conclusions
13. The existence of current mining tenements with a common boundary with the proposed tenement on its northern, western and southern sides, the proximity of the Coolgardie Esperance Highway and the virtually continuous series of current mining tenements to the north-west, the west, the south-west and south-east of the proposed tenement as outlined above, the relative proximity of the township of Widgiemooltha, the existence of pending mining tenements covering the whole of the area shown on the said map to the east, and the fact that the proposed tenement is on land the subject of a previous mining tenement, lead inescapably to the inference of considerable mining and other associated activity on the lands surrounding the proposed tenement in all directions. It also leads to the inference of considerable vehicle and machinery movement across those lands to and from mining tenements. That the proposed tenement was previously the subject of a mining tenement leads to the inference that it has already sustained disturbance. 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 tenement is not likely to so interfere. I further find there to be no evidence of the existence on, or in the near vicinity of, the proposed tenement of any area or site 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 tenement 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, the expression ‘major disturbance’ being given the meaning given to it in Dann v State of Western Australia (Full Court) 1997, 144 ALR 1.
Determination
The determination of the Tribunal is that the grant of prospecting licence P15/4346 is an act which attracts the expedited procedure under the Act. The objection is dismissed.
Hon E M Franklyn QC
Deputy President
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