Leonne Velickovic (Widji)/Western Australia/Hamill Resources Ltd
[2003] NNTTA 10
•10 February 2003
NATIONAL NATIVE TITLE TRIBUNAL
Leonne Velickovic (Widji)/Western Australia/Hamill Resources Ltd, [2003] NNTTA 10 (10 February 2003)
Application No: WO02/166
IN THE MATTER of the Native Title Act 1993 (Cwlth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Leonne Velickovic on behalf of Widji People (WC98/27) (native title party)
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The State of Western Australia (Government party)
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Hamill Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 10 February 2003
Representative of the
native title party: Mr Jerome Frewen, Desert Management
Representative of the
Government party: Mr Clyde Lannan, Department of Mineral & Petroleum Resources
Representative of the
grantee party: Mr Nathan McMahon, Mineral Title Services
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – authorisation of native title party deponent – likelihood of act directly interfering directly with the carrying on of community or social activities – likelihood of act interfering with sites of particular significance – likelihood of act involving major disturbance – the act does attract the expedited procedure.
Legislation:Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 66
Native Title Act 1993 (Cth) ss 31, 109, 148, 151, 237
Cases:Cheinmora v Striker (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Kevin Peter Walley & Ors (Ngoorooru Wadjari People)/Western Australia/Allan Neville Brosnan W0 00/427, Member Sosso, 17 August 2001
May Rosas/ BHP Billiton Minerals Pty Ltd/Northern Territory, DO01/98, Member Sosso, 25 June 2002
Ward v Western Australia (1996) 69 FCR 208
Western Australia/Kevin Peter Walley & Ors and Robin Boddington & Ors/Western Australia/Giralia Resources NL, WO01/179 & WO01/180, Deputy President Sumner, 8 March 2002
REASONS FOR DETERMINATION
Background
On 3 April 2002, pursuant to s 29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the Government party”) advised its intention to do a future act, namely to grant Exploration Licences E15/716 size - 35.17km2, 16km SE of Kambalda; E15/727 size - 67.33km2, 29km E of Widgiemooltha; E26/102 size - 17.6km2, 11km E of Kambalda and E25/264 size - 11.78km2, 26km E of Kalgoorlie. (“the Exploration Licences”) to Hamill Resources Ltd (“the grantee party”) under the Mining Act 1978 (WA). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 2 April 2002, Leonne Velickovic on behalf of the Widji People (“the native title party”) lodged with the Tribunal an objection to the statement that the grant of the Exploration Licences attracted the expedited procedure. The native title party’s Application for Determination of Native Title (WC98/27) was registered by the Tribunal on 15 June 1998. The area of the Exploration Licences is situated on this claim area.
The Tribunal accepted the objection application on 17 April 2002.
The Department of Mineral and Petroleum Resources on behalf of the Government Party advised the Tribunal that on 21 May 2002, the Exploration Licence application by Hamill Resources Ltd was discontinued. Consequently, on the 13 June 2002, the Tribunal dismissed the objection application in relation to E25/264 pursuant to s 148(a) of the Native Title Act 1993 (Cth).
In accordance with its normal Procedures under the Right to Negotiate Scheme of the National Native Title Tribunal, 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. The native title party did not file a Statement of Contentions but have informed the Tribunal that in that regard they rely upon the material contained in paragraph 22 of the Affidavit of Leonne Velickovic sworn on 25 November 2002. The Government party filed a standard Statement of Contentions. The grantee filed no evidence or Statement of Contentions but has sought to rely on that filed by the State. The parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way (s 151 NTA).
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.”
Legal principles
The nature of an Exploration Licence and activities permitted by it
In Western Australia/Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Giralia Resources NL, NNTT WO01/179 & WO01/180, Deputy President Sumner, 8 March 2002, considered the applicable legal principles (at [7]-[23]) and the nature of an Exploration Licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]). I adopt those findings for the purposes of this inquiry.
The evidence
The Government party’s evidence establishes that the underlying land tenure of the proposed tenements is:
E15/716
· General Lease GE I123728 (vested in Jarac Pty Ltd); and,
· Water.
E15/727
· Freehold (vested in Western Mining Corporation Pty Ltd);
· General Lease GE I123728 (vested in Jarac Pty Ltd);
· Patoral Lease 3114/1192 (vested in Jarac Pty Ltd); and
· Crown Reserve RES 17938.
E26/102
· Water.
There are no Aboriginal communities located within the vicinity of these tenements.
The Aboriginal Sites Register reveals there are no sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA) within the area of these tenements.
As there is no evidence of the grantee party’s intentions in relation to exploration, I have dealt with this matter on the basis that the grantee party will exercise the rights available to it under the grant to the full extent permissible by law.
The native title party lodged an affidavit of Leonne Velickovic who is a member of the claimant group.
Affidavit of Leonne Velickovic
“I, Leonne Velickovic of Coolgardie in the state of Western Australia, say on oath/affirm as follows:
1.I am a Registered Applicant of the Widji People Native Title Claim group
2.The Widji People live in and around Coolgardie, Kambalda and Kalgoorlie WA
3.Most of the Aboriginal people who live in the claim area are descended from Widji People. The language is still spoken today by elders of the Widji.
4.Hamill has applied for exploration licences in the claim area, and lies in part of the traditional country of the Widji people.
5.The Widji People run enterprises from is office in Coolgardie, and has acquired assets to enable it to manage its own affairs on its lands, and to secure its culture.
6.The Widji People are required to be consulted about activities that occur on their land, so that developers and explorers comply with the requirements of the Aboriginal Heritage Act 1972-80.
7.Section 5.1 of the Guidelines issued by the Department of Indigenous Affairs Heritage Branch require developers to consult with all Native Title claimants in the conduct of any survey. This is to ensure that that sites of significance are not disturbed, and that the community life, the incidence of native title, are all acknowledged and respected by land users.
8.My mother and elders taught me that the areas of "Widji" had been in traditional country from before the time when the white people came. My parents and elders told me of how the British settlers came to our country to prospect and look for gold, and they pass on to me stories of the early contact period.
9.We showed them the land and boundaries of our traditional grounds, and also the names that represented the area. For example Kalgoorlie, Kundana, Bulong, Kanowna, Coolgardie and many more areas we have named, and their meanings.
10.The tribe always moved in a nomadic fashion within the general area of claim in search of hunting & gathering of food. As weather patterns changed they would move from one waterhole to another, and from one area rich in hunting to another. This kept the tribe on the move due to the changes in the food cycle that would have the tribe travelling to various rock holes to & fro in the claim area. Neighbouring clan groups would also move into our areas as a result of seasonal weather patterns, for food, water and ceremonial or law purposes (the area contains one of the most significant law grounds) and the difficult road that survival would take.
11.We also recognise other tribes as visitors who have and lived in the land of the Widji claim in the last several decades as being nomads of different tribes, and cultures, many of whom have now married into the local Widji People, and are able to be given knowledge about our past traditions.
12.Passing on traditions is important to the Widji People. I grew up at various locations in the Widji claim area, with my parents and the elders. We lived in humpies and tents, and always shared what we had with my aunties and uncles. There was a big mob of us. I cannot mention the names of the old people because they have now passed away and we are not allowed to use their names once they die. This is part of our traditional laws and customs.
13.When I growing up, my family was always working on stations, farms, APB and other various jobs. The government policies at that time denied us our existence and gave us no legal rights
14.The owner was also obliged to recognise that traditional practices continued on "his" land - ceremonies and law continued, and we would continue to gather roots, shrubs and medicinal plants, the native "chewing" tobacco, trees for spears and other hunting implements, and kangaroo and emu. We would make our own medicines from scrub (a tradition absolutely necessary as we were not permitted to see doctors).
15.The tradition of making bush medicine has been passed down to me by the elders.
16.We would also use huge eucalyptus trees as a water resource in the dry period. The water would gather in winter, when the rains would fill the hollows of the tree, and we would clean them out through the summer droughts.
17.When we were children, the elders used to teach us stories while we were hunting and also around the camp. These stories were about the country. We still teach our children about these stories. They used to teach us these stories and sing these songs in the traditional language
18.I teach the language to our children as well.
19.I and other Widji people continue to use traditions today. We go out on weekends and for school excursions and the elders show the children how to hunt and fish and recognisee and gather edible berries and fruits in the traditional way.
20.The tradition of "trade" still exists today. Anthropologist rely on our elders for stories about the country, and for information about "sites" of significance so mining people are able to carry on their business, while paying compensation to us for land use. In exchange for information that we give, we receive entitlement to carry on traditional practices.
21.There are many traditions which are handed down, and which we still observe. These include traditions concerning burial, conception, marriage and ceremonial events.
22.
The applicant, Hamill Resources, wants to explore for minerals in our area. In our objection to their application that the application attracts the expedited procedure, we asserted:
The objectors believe that the proposed act is not an act attracting the expedited procedure because the proposed act:
(a) once granted, is granted for a period of five years, which may be extended at the discretion of the Minister for Mines up to 9 years with further extensions permitted under exceptional circumstances. This gives the Grantee Party unfettered access to the area for a very long time, and there is no requirement upon the Grantee Party to advise the Native Title Party of its activities, the location of its activities, the timing of its activities and the extent of disruption to the land.
(b) the Native Title Party continues to use the application area for traditional activities. These include, inter alia, hunting for food in the application area (on a seasonal basis), and gathering local flora, edible berries and seed; gathering honey ants; gathering ochre for ceremonial purposes; practising ceremonial activities; carrying out traditional law business each year; visiting the land to repair sites and waterholes and to commune with spirits; visiting the land to teach children their culture and traditions; teaching children the traditional names of features, flora, fauna and sites; visiting sites of significance; trading in resources from the area; visiting Dreaming sites, visiting rivers and creeks for fishing, and to teach children about water and river sites
(c) We also outlined the damage that would be done by the grant of the licence, as follows: under s66 of the Mining Act, the Grantee Party is authorized to:
·enter and re-enter the land with agents, employees, vehicles, machinery and equipment to explore for minerals;
·dig pits, trenches and holes, sink bores, costeans and tunnels to the extent necessary for the purpose in, or under, the land;
·excavate, extract or remove up to 1000 tonnes, or such greater amount as the Minister may, in any case, approve in writing;
·take and divert water from any natural spring, lake, pool, or stream situate in or flowing through the land or from any previous excavation made for any purpose in connection with exploring for minerals on the land.
There is no obligation on the part of the Grantee Party to consult with the Native Title Party before carrying out such activities. The exercise of these rights of these activities will cause distress to the Native Title holders, who are aware that such activities are likely to be carried out by the Grantee Party to the full extent permitted, involving disturbance to the land and waters concerned, and to their traditions as outlined in (b) above. For example, teaching children about country within the area of application, whilst digging and costeaning is being carried out, will present significant risk to person as well as potential damage to sites. Under Aboriginal tradition, if damage occurs to sites, the custodian may be sanctioned for not preventing such damage.
(d) the level of protection provided by the Aboriginal Heritage Act and the Guidelines Issued to Persons Obtaining Exploration Licences is not an appropriate level of protection sufficient to protect sites on the land
23. In respect of application area E26/102, there exist sites of significance which are of importance to the Widji. In particular, there is an ethnographic site, a rockhole and flora used for traditional purposes. The applicant has not agreed to a heritage protocol with the Widji to protect these sites of significance. It is likely that a s18 application may be necessary before these sites can be disturbed, and the Widji will need to be consulted about this application. Therefore, the application risks damaging at least 3 sites of significance known to the Widji, and possibly more. And without knowing the location of where the applicant proposes to carry out his activities, serious damage could be done to many more sites of significance.
24. In respect to E15/716 and E15/727, ethnographic sites are known in this area to the Widji People. Again, before any activity could be contemplated by Hamill Resources, a heritage protocol needs to be agreed upon.
25. In respect of E25/264, the Widji elders will be visiting the area with a view to seeing what sites would be at risk, however with the onset of law business this will not occur until February next year.
26. We have indicated to Hamill Resources that we would agree to entering into a heritage protocol, to ensure that their activities did not disturb our sites. Hamill Resources refuses to discuss this with our representative.
27. Nor has the applicant agreed to enter into an agreement about how the activities of the company could address the community life of the Widji People. If we are on country, teaching children about traditional foods and medicines, it is very likely that the activities of the applicant would risk the life of the children through use of heavy machinery, vehicles and the like, and given that the activities are allowed over many years, the risk exists for a very long time. There is no requirement on the applicant to notify us of their proposed activities, their timing, or their location. This is an untenable situation.
28. Law business has now commenced in the area, and we are now occupied with traditional customs which bring us together each year. Law business continues until the end of January 2003.
29. For these reasons these applications do not attract the expedited procedure.
30. We have authorised Desert Management as our agent in this matter, and would recommend that the company negotiate an agreement with Desert Management. If our consent is required, our agent will consult with us.
The evidence in the affidavit lodged by the native title party has not been contested by either the Government or the grantee parties and I accept it for the purpose of this determination.
Authorisation of the native title party deponent
In the affidavit of Leonne Velickovic there is a reference in paragraph 1 to the fact that he is one of the applicants to the Widji People claim. There is no other assertion in the body of the affidavit as to the authority of Leonne Velickovic to speak on behalf of the native title group in relation to the areas covered by the proposed tenements. The Tribunal has held in the past that it is important that a deponent in a affidavit specify whether they are a member of the relevant native title claim group, what position they hold in the claim group, on what basis they can speak for the country or site, the significance of the country or site, such other information which allows the Tribunal to ascertain that what is being deposed to, is a proper reflection of the traditions of the claim group. I do not suggest that Leonne Velickovic does not have the requisite authority to speak on behalf of the matters he deposes to in his affidavit, but the basis upon which he makes the statements contained in the affidavit have not been properly elucidated. (See May Rosas, the BHP Billiton Minerals Pty Ltd (2002), NNTT DO01/98, Member Sosso, 25 June 2002 (at paragraphs [28] and [21]).
Community or social activities (s 237(a))
The affidavit of Leonne Velickovic contained references in paragraphs 8 to 21, part of paragraphs 23 and 27 to matters which may be referable to sub s 237(a) Native Title Act. In paragraph 10 there is a reference to “the general area of claim” (line one) and “the claim area” (line 5 and 6). There is later reference to “the land of the Widji claim” (paragraph 11) and “the Widji Claim area” (paragraph 12). However, at no point is there an explicit reference to the area the subject of the proposed tenements. As the area of the proposed tenements are within the area the subject of the Widji Claim, I presume that some of the activities and customs of the community described in paragraphs 8 to 21 took place on the areas the subject of the proposed tenements. There is, however, no direct evidence relating to the conduct of such activities or the observance of such customs within the area the subject of the proposed tenements, nor any evidence of how they might be interfered with by the granting of the tenements.
In paragraph 23 of the affidavit, which refers particularly to E26/102, Leonne Velickovic refers to sites of significance including, inter alia, “flora used for traditional purposes”. It is not clear if this is a reference to the significance of the flora itself or to the place at which it grows. The species of plant is not identified nor the location of the area that is relevant within the proposed tenement area of E26/102. There is no evidence that this is the only area within the Widji native title application area in which this particular form of flora grows, and there is no evidence as to the significance of its use to the Widji native title group. Finally it is not clear that the grant of the tenement would interfere with the collection or use of this flora for traditional purposes.
In paragraph 27 of the affidavit of Leonne Velickovic he deposes to the concern of the native title party that the grant of the tenements would interfere with the community life of the Widji people because the exploration and associated activities of the grantee party on the tenement areas, including the use of machinery and heavy vehicles, would be likely to potentially endanger the children of the native title party when they are visiting the areas the subject of the tenement application in pursuit of traditional activities.
In my view, the expression of such a concern, while no doubt genuine, can not form the basis of a conclusion of the likelihood of a direct interference with community life. The view that I have formed is based on my regard to the nature of the conditions and the regulatory regime which would apply to the exercise of rights under the Exploration Licence when granted and to the fact that these tenement applications are within an area in which there has been over 100 years of intensive exploration and mining activity.
The Tribunal must consider where there is a real risk of substantial interference with the community or social activities of the native title party. There is nothing in the affidavit of Leonne Velickovic which could found a conclusion that the community or social activities of the native title party would be substantially interfered with on the areas the subject of the proposed tenements. Consequently, I find that the range of activities permitted by an Exploration Licence on those tenement applications is not likely to directly interfere with the community or social activities of the native title party.
Sites of particular significance (s 237(b))
The affidavit of Leonne Velickovic makes reference to a number of sites and other areas on the various tenements. In paragraph 23, Leonne Velickovic deposes to the existence of “sites of significance which are important to the Widji” on the area of the proposed tenement E26/102. He refers to “an ethnographic site” a “rock hole” and “flora used for traditional purposes”. There is no further identifying information in relation to the ethnographic site or the rockhole or indication as to where they are located on E26/102. The question of flora is dealt with in paragraph [17] above. There is no attempt to establish the particular significance of the ethnographic site or the rockhole and no reason is advanced as to why this has not or cannot be done. In paragraph 24, in reference to E15/716 and E15/727, there is an assertion that the Widji People “know” ethnographic sites in the area. Again, there is no identification or description of those sites, their number, or significance and no reason advanced as to why that information could not be or was not provided. Paragraph 25 refers to E25/264, which as noted above at paragraph [4] of this determination, was dismissed by the Tribunal on 13 June 2002 after the application had been discontinued by the grantee party and is therefore not relevant.
There is also a reference in brackets, in line 8 of paragraph 10 of the affidavit of Leonne Velickovic, to (“the area contains one of the most significant law grounds”). It is not clear from the affidavit whether this significant law ground is in the general area of the claim, the claim area, or for that matter, either in or close to the area the subject of the proposed tenements. As there is no further reference to this significant law ground in subsequent paragraphs dealing with the various tenements (paragraphs 23, 24 and 25), I cannot reach the conclusion with any degree of certainty that this significant law ground is on or within the vicinity of the proposed tenement areas. I am also unable to assess the relative significance of the law ground in question as the use of the term “most” is not qualified by a reference to any area, therefore it is unknown whether the claim is to the effect that it is the most significant law ground in the Widji claim area or to the Widji people, the most significant law ground in the Goldfields region or one the most significant law grounds in the State or beyond its borders.
There are no sites recorded on the Aboriginal Sites Register in Western Australia on the areas the subject of the tenement applications. It is accepted that the Register is not a complete record of all Aboriginal sites in Western Australia. The protective provisions of the Act apply whether or not the site is on the Register. It has been accepted by the Tribunal that the Register of Aboriginal sites is not an exhaustive list of sites and the fact that no such registration appears is not indicative one way or the other as to the potential existence of sites of particular significance to native title holders on the area the subject of the tenement applications. (See Kevin Walley on behalf of the Ngoorooru Wadjari People/W.A./Allan Brosnan W0 00/427, 17 August 2001, at 42 and 44 per Member Sosso). Nevertheless, it is a condition precedent for an inquiry of this nature when considering s 237(b) of the Native Title Act for the native title party to bring to the attention of the Tribunal that there are areas or sites of particular significance to the native title party within the area of the proposed tenement and that the act proposed is likely to interfere with that site or area (see Walley at 45). The site must be of particular significance to the native title party in the sense of being special or of more than ordinary significance. (See Cheinmora v Striker (1996) 142ALR 21 at 34 and 35 per Carr J). The evidence contained in the affidavit of Leonne Velickovic does not establish any basis for determining the significance of the sites that are referred to in it.
There is insufficient evidence before the Tribunal to conclude that there are any areas or sites of particular significance to the native title party within the area the subject of the proposed tenements.
Major disturbance to land or waters (s 237(c))
The only material that I can discern in the affidavit of Leonne Velickovic that may be relevant to the s 237(c) limb, appears to be the matters referred to in paragraph 22 of the affidavit. In essence that paragraph is a restatement, in as far as I can discern identical terms, of paragraph 7 of the Form 4 filed by the native title party with the Tribunal on the 2 April 2002. I understand from the native title party that, while they did not file a Statement of Contentions in accordance with the directions, they would wish the material contained in paragraph 22 to be considered as such. The relevant material refers to four matters. Firstly, a general description of the rights which attach to the grant of an Exploration Licence in Western Australia. Secondly, a listing of the traditional activities the native title party continues to engage in on “the application area”. Thirdly, an outline of the what the grantee party is alleged to be entitled to do under s 66 of the Mining Act and an assertion that to the extent that the grantee party is permitted to carry on these activities, there may be dangers to the children of the native title party group (which are discussed at paragraph [18] and [19] above). This risk is said to be additional to the potential damage that may be done to sites. There are further statements to the effect that under Aboriginal tradition, where damage occurs to sites, the custodian may suffer a sanction for not preventing such damage, presumable from the jural public of other Aboriginal custodians in the surrounding areas. And fourthly, an assertion that the levels of protection under the Aboriginal Heritage Act and Guidelines are insufficient to protect sites on land.
As mentioned above, the question of the potential dangers to children on country sits more comfortably with s 237(a) than s 237(c). Nevertheless, in my view, particularly in relation to the second point where the native title party outlines the sorts of traditional activities they continue to conduct on “the application area”, there is a significant level of ambiguity. It is not clear whether “the application area” referred to is the application area for the claim or the application area relevant to the tenements under consideration. Further, there are a whole series of activities listed as taking place in this area, including importantly, visiting “Dreaming sites”. There is no further elaboration on this matter in the balance of the body of the affidavit.
The question that the Tribunal is required to decide when considering s 237(c) of the Act is to assess whether the grant of any of the proposed licences is likely to involve major disturbance to the land or waters concerned or create rights, the exercise of which will involve major disturbance. The question of whether there is a likelihood of major disturbance is to be determined from the viewpoint of the general community, but taking into account the concerns of the local Aboriginal community as disclosed by the evidence. A mere assertion of the likelihood of major disturbance is not enough. (See Dann v Western Australia 1997, 74FCR 391). No party in inquiries of this nature has an obligation to make out a case that the expedited procedure does not apply and the Tribunal will take a commonsense and non technical approach to the determination of these matters. (See Ward v W.A. (1996) 69FCR208 at 217 and s 109 of the NTA). The evidence contained in the affidavit of Leonne Velickovic assessed in a common sense and non technical manner clearly does not establish the requisite likelihood of major disturbance.
There is insufficient evidence before the Tribunal to conclude that the grant of the proposed tenements is likely to cause major disturbance to any land or waters within the proposed tenement areas.
Determination
The determination of the Tribunal is that the grant of each Exploration Licence 15/716, 15/727 and 26/102 to Hamill Resources Ltd are acts attracting the expedited procedure.
Daniel O’Dea
Member
February 2003
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