Leonne Velickovic/Western Australia/Richard Henry Cooke, Neil Wesley Sinclair; Richfield Resources NL
[2001] NNTTA 44
•8 June 2001
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic/Western Australia/Richard Henry Cooke, Neil Wesley Sinclair;
Richfield Resources NL, [2001] NNTTA 44 (8 June 2001)
Applications Nos: WO00/199, WO00/222
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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Richard Henry Cooke, Neil Wesley Sinclair (grantee party)
AND
Applications Nos: WO00/196, WO00/230
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 (native title party)
- and -
The State of Western Australia (Government party)
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Richfield Resources NL (grantee party)
REASONS FOR A DETERMINATION
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 8 June 2001
Catchwords: Native Title – future act – proposed grant of prospecting licences – expedited procedure objection application – not an act which attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) s 237,
Cases:Dann v Western Australia (1997) 74 FCR 391.
REASONS FOR DETERMINATION
On 21 January 2000, the State of Western Australia (the State), pursuant to s 29 of the Native Title Act 1993 (the Act), notified its intention to grant Prospecting Licences 27/1511, 27/1512, 27/1513, and 27/1514 to Richfield Resources NL (the first grantee) and Prospecting Licences 25/1666 and 25/1667 to Richard Henry Cooke and Neil Wesley Sinclair (the second grantee) and, on 9 February 2000, also pursuant to s 29, notified its intention to grant Prospecting Licence 27/1515 to the first grantee and Prospecting Licences 25/1664 and 25/1665 to the second grantee, stating in the respective notices that it considered each such grant to be act attracting the expedited procedure.
On 25 January 2000, Leon Velickovic (the objector), a claimant in registered native title claim WC98/27 (lodged on behalf of the Widji people) lodged an objection to each of the said proposed grants notified on 21 January 2000 and, on the 7 February 2000 to each of the said proposed grants notified on 9 February 2000. The grounds of objection being identical in each case contending that:
“The objectors assert that an inclusion of the statement that the grant of these licences and applications as an act attracting the expedited procedure:
a.will directly interfere with the community life of the native title holders,
b.will interfere with areas or sites of particular significance,
c.will involve disturbance to the land and waters concerned,
d.will interfere with native title holders enjoyment of their customs and their access to enjoyment of the resources of the land and waters.”
Grounds (a), (b) and (c) of those grounds are plainly founded in section 237(a), (b) and (c) respectively. Ground (d), presumably, is a particular of ground (a) and possibly ground (b).
The objection so lodged in respect of the proposed grants to the first grantee are numbered WO00/196 in respect of those notified on 21 January 2000 and WO00/230 in respect of those notified on 9 February 2000. The objections lodged in respect of the proposed grant to the second grantee are numbered WO00/199 in respect of those notified on 21 January 2000 and WO00/222 in respect of those notified on 9 February 2000.
Preliminary conferences were held respectively on 27 June 2000 in respect of objection WO00/196 and WO00/199 at which the first grantee represented itself and the second grantee and, on 11 July 2000 in respect of WO00/222 and WO00/230 at which, again, the first grantee represented both itself and the second grantee. At such preliminary conference the first grantee advised that it wished to investigate the question whether the Tribunal had jurisdiction to entertain the objections. Directions were nevertheless made in respect of each objection application, setting dates on or before which the parties respectively must lodge and serve on the other parties their respective contentions, documents to be relied on and statements of evidence to be given by any witness. The State was directed to lodge specific documents and the objector to include in his statement of contentions a statement of the nature and location of sites or areas of particular significance on or adjacent to the proposed tenements, identifying in each case the particular significance of the site or area, and also a statement of the community or social activities of the native title party contended to be likely to be interfered with directly by the grant of the tenements. The preliminary conferences were each adjourned, WO00/196 and WO00/199 to 12 September 2000, and WO00/222 and WO00/230 to 26 September 2000. The State duly lodged its documents in accordance with the directions by the respective dates so directed. The native title party duly lodged documents, being a statement of contentions and a supporting affidavit in respect of objection applications WO00/222 and WO00/230 but failed to lodge any such in respect of objection applications WO00/196 and WO00/199 by the directed date. All four objection applications were then adjourned to 29 September 2000 and called on together. By that date the native title party had still not complied with the directions earlier given. There was discussion as to the issue of jurisdiction and directions were made to enable the government party to investigate that issue. The matter was further adjourned to 24 November 2000 for that to be done. On that date the government party advised it could not conclude that native title had been extinguished in respect of any of the lands the subject of the proposed grants. The native title party had then still not complied with the directions in respect of WO00/196 and WO00/199 and were directed to comply therewith by 5 December 2000. Documents purporting to comply were lodged on 27 November, being a statement of contentions and an affidavit from the objector in support of each objection. The situation then was that in respect of each of the four objection applications the State had lodged its statement of contentions and the specific documents and information required of it, and the objector a statement of contentions and an affidavit of the objector by way of supporting evidence. No documents had been lodged by the grantee.
The native title party’s statement of contentions and supporting affidavit in respect of each objection were in identical terms and have been the subject of comment by me in a number of previous objection applications lodged by the objector in respect of other mining tenements. They are each non-specific to the land the subject of the relevant proposed grants. The contentions make reference to the terms of s 237(a), (b) and (c) of the Act and deal generally with the native title party’s connection to the land the subject of its native title claim. They do not, however, contain any statement of the nature or location of sites or areas of particular significance on or adjacent to any of the proposed tenements, nor identify any particular significance in respect of any site. Nor do they contain any statement of community or social activities likely to be directly interfered with by the grants. They speak in only general terms of the rights and interests of the native title holders over the whole of the land the subject of the native title application and say that the enjoyment of those rights and interests are likely to be interfered with in each case by the activities of the respective grantees and that it is more likely that members of the claim group will “seek to enjoy at a minimum the right to access the land the subject of the Act [sic] for at least hunting, camping, site inspection and care and maintenance during the term of the proposed licence” and assert that, “all land within the native title claim area contains sites of significance”. They further assert that the grantees activities on the tenement areas are likely to interfere directly with activities of native title holders, in that access to enjoy the areas and native title rights and interests will be impeded, the natural plant life and animals will be interfered with, access denied to naturally occurring resources and that activities conducted without consultation will interfere with traditional law and customs. The contentions also assert that the grantee may inadvertently interfere with sites through “not being aware of their existence”. I find that statement of contentions in the case of each objection application does not provide any statement sufficient to comply with the direction to provide a statement of the nature and location of sites of significance and their respective particular significance, nor of relevant community or social activities of the native title party. Nor do they provide sufficient information to permit even the drawing of a relevant inference specific to the various tenements the subject of the proposed grants.
On 24 November 2000, I was appointed to conduct the inquiry in respect of each of the four objection applications. A joint listing hearing was convened on 2 March 2001. The native title party representative, Mr J Frewen, advised at that hearing that the objector had recently visited the tenements the subject of the objections and wished to provide further evidence to establish the existence of “very significant sites”, was meeting with others that same day near Kanowna (a town in the vicinity of the proposed tenements) and intended to use the global positioning system (GPS) to record the location of the sites. He asked for a period of two weeks to provide the resulting evidence. Neither the grantee nor the State objected to that request and directions were made that any further evidence to be relied on by the native title party in respect of all or any of the four objection applications was to be lodged and served on the other parties on or before 16 March 2001. The hearing was adjourned to that date.
On 7 March 2001 the objector filed, in respect of each objection application, an affidavit sworn by the objector on 7 March 2001. Save that each such affidavit refers to and describes the location and number of the proposed prospecting tenements the subject of the respective objection application in respect of which it was lodged, they are in terms virtually identical to each other. None of them testify or purport to identify sites of particular significance on or in the vicinity of any of the land the subject of the proposed tenements, nor do they refer to any attempts to identify the same by the use of GPS or otherwise. As the objector failed to serve copies of the same on the other parties, the Tribunal forwarded copies of such affidavits to them and invited them to respond if they so wished by 21 March 2001. No response was received.
The evidence
The documents and information provided by the State, which I do not set out in full but the correctness of which is not challenged, reveal the following:
In respect of objection application WO00/196, each of the proposed grants (Prospecting Licences 27/1511, 27/1512, 27/1513 and 27/1514) is situated on pastoral lease land vested in Centaur Mining & Explorations Ltd (Centaur), 27/1511 and 27/1512 being also on Reserve land vested in the Shire of Boulder, 27/1513 being also on special lease land vested in Centaur and on a road, and 27/1511 being on the aforesaid pastoral and special leases. Each of the four proposed grants covers an area of a little under 200 hectares and is approximately 20 kms from Kalgoorlie.
In respect of objection application WO00/199, proposed licence 25/1666 is situated on the said special licence vested in Centaur and on unallocated Crown land and proposed licence 25/1667 is situated on the said special lease.
In respect of objection application WO00/222, Prospecting Licence 25/1664 is situated on the said special lease and a road, and Prospecting Licence 25/1665 is situated on the same special lease and also a reserve vested in the Minister for Works under the Water Act and a road.
In respect of objection application WO00/230, the proposed licence 27/1515 is situated on the said pastoral and special leases vested in Centaur and also on a reserve vested in the Shire of Boulder and a road.
There are no Aboriginal communities within the vicinity of any of the proposed tenements, nor are there any sites registered on the Aboriginal Sites Register under the Aboriginal Heritage Act 1972. The Tengraph maps provided by the State reveal that the proposed tenements, viewed as a whole, form an irregular block of land bordered on the east, south and west by existing mining tenements and on the north, for a distance of some 3 kms, by land applied for as mining tenements beyond which there are further existing mining tenements. The maps reveal all of the proposed tenements to be well within a very much larger area the subject of numerous existing and proposed mining tenements. A road connecting Kanowna to Balagundi cuts through the proposed Prospecting Licences 25/1665, 27/1513, 27/1515. There is also what appears to be a road from Mt Yule to Kanowna passing to the east of, but close to, proposed licences 27/1511 and 27/1512. The information provided by the Tengraph maps lead inevitably to the conclusion that the whole area surrounding the proposed tenements the subject of each objection application is the subject of intensive mining activity.
I have referred to the two separate affidavits lodged by the objector in each objection application. I refer, in each case, to that lodged with the native title party’s statement of contentions as “the first affidavit”.
The first affidavit filed by the objector in each of these matters, save for its title, is in precisely identical terms to each of the other and, to my knowledge from other unrelated objection applications lodged by him, to those lodged by him in such other objection applications. It can be and is obviously used as a common affidavit for use in such applications under different titles. It does not identify by description or reference to the proposed tenement number or numbers the land the subject of the objection but instead refers variously to “the area covered by the application of the grantee party”, “the area applied for by the grantee party”, and “the area the subject of the application of the grantee party”. Save in respect of the proposed Prospecting Licence 27/1515 (the sole tenement the subject of objection WO00/230) it is not specific in its terms in any way to any particular proposed tenement. By each such affidavit, the objector, without objection, deposes that he, with others of the claimant group, throughout his lifetime has regularly traveled and camped “throughout the area applied for by the grantee”, and has regularly hunted “in the area applied for”. Further that he and others of the claim group travel to the area of the grantee’s application to procure resources for spears, artifacts and utensils used for traditional customs and for hunting and the gathering of food, medicine and resources for ritual decoration. He deposes that he often visited the places and sites of significance within “the claimed area” to engage in ritual activities and carry out the duty of caring for them. He gives no indication however of the location or particular significance of any such site, deposing that, for cultural reasons, he is not permitted to publicly disclose their nature. I draw attention to the fact that the directions made in these matters contain provision for the protection of documents of a confidential nature, which would include the objector’s affidavit if he so chose, from public disclosure. But assuming, without accepting, the existence of such sites on the relevant land, he has apparently elected not to take advantage of that direction. He gives no evidence of any present or previous difficulty in, or interference with, the carrying on on any of the proposed prospecting licences of the activities to which he deposes, whether because of current mining tenements adjacent to the same or in the near vicinity or otherwise. Indeed, his evidence makes no reference to the existence of any such mining tenements.
The later affidavit filed by the objector in respect of each objection application (the second affidavit) to a large extent repeats the assertions in the first affidavit. It does however identify, by stating the relevant proposed prospecting licence numbers, the proposed tenements in the “application area” to which he therein refers. In each such affidavit he deposes to travelling through the application area on 25 February 2001 and also prior to the grantee’s applications for the same being made. He says that sites of special significance were shown to him and others of the group by his ancestors “where they occur” and that he regularly visits them to engage in ritual activities and to carry out his duty of care. He does not identify where, or even on which, specific proposed prospecting licence or licences such sites occur. He says that he cannot publicly disclose “all the details about the sites” for cultural reasons. In fact, he discloses no details.
In respect of the area covered by proposed Prospecting Licences 27/1511 to 27/1514 inclusive, (objection WO00/196) he deposes the same to be situated approximately equidistant between Kanowna and Balagundi and to comprise approximately 15 sq kms and to include known camping sites. Elders have advised him that there “may exist” there areas of particular special importance. On 25 February 2001 there was a rock hole, evidence of plenty of water and of recent camping, with ashes from a recent fire and utensils adjacent to the ashes. He does not depose to whether the evidence of recent camping was on one only or both of the said proposed licence areas.
I make the point at this stage to avoid having to repeat the same, that in each of the second affidavits lodged by him in respect of the four objection applications, he says that the relevant area is a rich source of timber for making traditional spears and, being adjacent to the fringe-dwelling areas of Kalgoorlie/Boulder, provides a source a trade for “our people” to enable them to survive in the urbanised area. Again, he does not identify whether that statement applies to land the subject of each proposed licence.
In the second affidavit filed in respect of proposed Prospecting Licences 25/1666 and 25/1667 (objection WO00/199) he deposes that the same are approximately 3 kms from Balagundi and 12 kms south of Kanowna, covering approximately 2 sq kms and that, on the visit of 25 February, the lands covered by them showed recent evidence of camping, hunting and the collection of branches for the making of spears. He comments there is evidence of plenty of water and repeats that Elders have told him that “as for the other prospecting licences applied for”, there “may exist” areas of particular special importance.
In the second affidavit filed in respect of proposed Prospecting Licences 25/1664 and 25/1665, (objection application WO00/222) he deposes that the same are approximately 5 kms from Balagundi and 10 kms south of Kanowna and cover approximately 6 sq kms of land; that such land showed recent evidence of camping and hunting and the collection of branches for the making of spears, with plenty of water. He deposed again to the advice of Elders that there “may exist” areas of particular special significance.
In the affidavit filed in respect of proposed Prospecting Licence 27/1515 the objector deposes that the same is adjacent to three others applied for “by the same interest”, is very narrow with a length of approximately 7 kms and width of approximately ½ km, is located approximately equidistant between Kanowna and Balagundi and includes and is adjacent to other licences containing known camping sites over many years. He testifies that he saw evidence of recent camping with ashes from a recent fire and utensils adjacent to it. He repeats that the Elders advise him that there “may exist” areas of special importance and says that his visit was brief but he was satisfied that there existed places of importance to native title. He says that the area is a rich source for game hunting and procuring edible foods important to the peoples diet.
I find there to be substantial inconsistency between the objector’s deposition that sites “where they occur” in the proposed prospecting licence areas had been shown to him by the ancestors, that he regularly visits them to engage in ritual activities and to carry out his duty of care, and his deposition that Elders have advised him that there “may exist areas of special importance” in the areas the subject of the proposed prospecting licences.
Conclusion:
I find there to be no acceptable evidence of the existence of sites of particular significance within the meaning of s 237(b) of the Act on the land of or in the vicinity of any of the proposed prospecting licences and so no likelihood that any of the proposed grants would interfere with areas or sites of particular significance in accordance with their traditions to the holders of native title. Further, having regard to the location of the proposed tenements, well within an extensive area the subject of many mining tenements and, by inference, mining and associated activity, and giving to the words “major disturbance” used in s 237(c) of the Act that given it in Dann v Western Australia (1997) 74 FCR 391, I find that none of the proposed grants is 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. However, having regard to the unchallenged evidence of the objector and to the fact that the grantees and the State were each given an opportunity to respond thereto but elected not to do so, I accept the objector’s testimony that the land the subject of each of the proposed tenements has been regularly used by the native title parties for hunting, the gathering of food and resources for articles of a traditional nature and is still used by them for such purposes. I find that each such activity is a community or social activity of the native title holders within the meaning of s 237(a) of the Act. Consequently, I am unable to find that the grant of any one of the proposed prospecting licences is not likely to interfere directly with the carrying on of any such activities.
DETERMINATION
The determination of the Tribunal is that the grant of any of the proposed prospecting licences P27/1511, P27/1512, P27/1513, P27/1514 (the subject of objection application WO00/196), P25/1666, P25/1667 (the subject of objection application WO00/199), P25/1664, P25/1665 (the subject of objection application WO00/222) and P27/1515 (the subject of objection application WO00/230) is not an act which attracts the expedited procedure.
Hon E M Franklyn, QC
Deputy President
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