Monadee v Western Australia
[2003] NNTTA 38
•26 February 2003
Reported at (2003) 174 FLR 381
NATIONAL NATIVE TITLE TRIBUNAL
Bruce Monadee & Ors (Ngarluma Indjibarndi) and Wilfred Hicks (Wong-goo-tt-oo)/Western Australia/Cossack Resources, [2003] NNTTA 38 (26 February 2003)
Applications No: WO02/290 & WO02/457
IN THE MATTER of the Native Title Act 1993 (Cwlth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Bruce Monadee and Others on behalf of the Ngarluma Indjibarndi
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Wilfred Hicks on behalf of the Wong-goo-tt-oo People (native title parties)
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The State of Western Australia (government party)
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Cossack Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: John Sosso
Place: Brisbane
Date: 26 February 2003
Hearing date: 23 January 2003
Native title parties: Mr Michael Ryan, Pilbara Native Title Service (Ngarluma Indjibarndi) and Mr Grantham Kitto, Kitto & Kitto Barristers & Solicitors (Wong-goo-tt-oo)
Government party: Mr Greg Abbott, Department of Mineral & Petroleum Resources
Grantee party: Mr Michael Shemmessian, Cossack Resources Pty Ltd
Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection applications – legal principles – Aboriginal heritage surveys – evidence – whether act is likely to interfere with the carrying on of community and social activities – objection application upheld.
Legislation:Native Title Act 1993 (Cth) s 29, 44H, 47, 109, 151, 237
Cases:Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116
Kevin Walley & Ors on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan WO00/427, Member Sosso, 17 August 2001
Little v Western Australia [2001] FCA 1706
Smith v Western Australia (2001) 108 FCR 442
Violet Drury & Ors on behalf of the Nanda People/Western Australia/Giralia Resources NL WO00/93, unreported, Deputy President Franklyn, 17 August 2001
Walley v Western Australia (2002) 169 FLR 437
Ward v Northern Territory (2002) 169 FLR 303
Wilfred Hicks & Ors/Western Australia/Blackjack Resources Pty Ltd WO01/233 and 234, unreported, Deputy President Franklyn, 4 November 2002
Yorta Yorta v Victoria [2002] HCA 58
REASONS FOR DETERMINATION
Background
On 15 May 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 grant prospecting licence 47/1119 (“the prospecting licence”) to Cossack Resources Pty Ltd (“the grantee party”) under the Mining Act 1978 (WA). The tenement is situated 17 km south east of Karratha (centroid – Lat 20o50’ Long 116o59’), comprises 155.98 ha and is wholly located within the Roebourne Shire. The notice included a statement that the government party considered that the act is an act attracting the expedited procedure.
On 5 June 2002, Bruce Monadee and Others on behalf of the Ngarluma Indjibarndi (“first native title party”) lodged a Form 4 (Objection to Inclusion in an Expedited Procedure Application) with the Tribunal. The Ngaluma/Injibandi peoples’ Application for Determination of Native Title (WC99/14) was registered by the Tribunal on 14 July 1999. The area of the proposed prospecting licence is situated on this claim area.
On 13 September 2002, Wilfred Hicks on behalf of the Wong-goo-tt-oo (“second native title party”) lodged a Form 4 (Objection to Inclusion in an Expedited Procedure Application) with the Tribunal. The Wong-goo-tt-oo People’s Application for Determination of Native Title (WC98/40) was originally entered on the Register of Native Title claims on 10 July 1998 and was accepted for registration by the Native Title Registrar, under the new Act provisions, on 9 April 1999. The area of the prospecting licence is situated on this claim area.
Deputy President Sumner issued Directions to the parties in the matter WO02/290 on 24 June 2002 and on 1 October 2002 in the matter WO02/457. The Directions for both matters require the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. The Tribunal has before it written contentions and related documents lodged by both the native title parties as well as the government party pursuant to those Directions.
On 17 February 2003 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
No party has requested that there be an “on country” hearing, or that oral evidence be given. Rather, all parties were content for a determination to be made “on the papers” pursuant to section 151 of the Act. The Tribunal is empowered to make a determination on the basis of the written material submitted, however a hearing must be convened if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties – s 151(2). The power to make a determination without a hearing is a broad one. R D Nicholson J in Little v Western Australia [2001] FCA 1706 said (at [55]): “The patent intention of the power is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties.” In this instance, even though the material supplied by the parties is not extensive, I have taken into account the fact that no application has been made for a hearing. The Federal Parliament has enacted that this Tribunal must pursue its functions in a “fair, just, informal and prompt way” (s 109(1)). The element of promptness in an expedited procedure objection inquiry is, subject to according procedural fairness to the parties, a critical issue. The very nature of the term “expedited procedure” makes it clear that it is a statutory procedure aimed at achieving an outcome in a prompt fashion. Accordingly I formed the view that there was sufficient material presented that would enable me to reach a determination “on the papers”.
Nonetheless the Tribunal has been presented with no material from the grantee party, and in addition, the material from the government party is slight. I have taken into account that the proposed tenement is quite small (155.98 ha) and that the proposed future act is the grant of a prospecting licence. Deputy President Sumner in Walley v Western Australia (2002) 169 FLR 437 set out the main features of Western Australian prospecting licences (at 453). Whilst prospecting licences generally confer the same rights as exploration licences, they are more restricted in terms of area, duration, the extent of disturbance and extraction of materials from the affected land and waters.
What is potentially important, but lacking from this inquiry, is any evidence of whether there has been previous exploration or mining activities on, or in the immediate vicinity of, the subject area. The documents provided by the government party indicate that the area has been the subject of grants of various exploration and mining tenements. These previous grants are as follows:
(a) a prospecting licence (P47/1072) which expired on 24 September 2001;
(b) a mineral claim (MC47/2133) which was surrendered on 28 May 1974; and(c) two gold mining leases (GML 47/1040 and 47/1041) which were forfeited on 10 November 1911 and 25 September 1908 respectively.
There are also mining leases and prospecting and exploration licences in the vicinity of the subject area. However, there is no evidence of the extent, if any, of actual exploration or mining activity. There is also no evidence of what prospecting is proposed by the grantee party, in particular whether it will comprise literature searches or stream sediment sampling or ground magnetic surveys or rock chip sampling or percussion drilling or metal detecting or any number of other activities. Whilst, as Deputy President Sumner points out in Walley (at 453) the normal type of activities engaged in by prospectors is usually of a low impact nature, ground disturbing activities are permitted. Consequently, the Tribunal is not in a position to infer what prospecting activities will be engaged in by the grantee party on the area of the proposed tenement, other than to take into account that, at law, and subject to the Conditions proposed to be imposed on the Prospecting Licence, ground disturbing activities can be lawfully carried out. Further, there is no evidence whether the prospecting will be localised or take place throughout the proposed tenement. There is no evidence whether the prospecting will be limited to particular seasons. There is no evidence whether the grantee party has operated in this area before. There is next to no evidence of the physical nature of the subject area, in particular whether it is traversed by watercourses (other than a reference in the Tenegraph Quick Appraisal to a “Minor Watercourse – Non-Peren”), has dense or sparse vegetation or has any sensitive geological features. There are many other evidentiary matters which are also absent.
It is up the parties to present to the Tribunal such material as they think appropriate; it is not incumbent on the Tribunal to direct the parties to lodge materials that will advance their contentions. However, there is a considerable difference between the type of evidence presented by the government party in Northern Territory expedited procedure objection inquiries to that presented in this matter by the government party. In the Northern Territory the government party takes great care to present to the Tribunal material which is considered relevant to an expedited procedure objection inquiry and this has occurred in the context of a jurisdiction which has extensively used the expedited procedure process over the past two years to deal with its exploration backlog.
In this inquiry, in contradistinction to the government party, the native title parties have supplied the Tribunal with detailed contentions and focused primary evidence. It must be borne in mind that it is the government party that commences this process by issuing a section 29 notice and asserting the proposed future act attracts the expedited procedure. Presumably there is a factual basis for this assertion that goes beyond the rote recounting of selected sections from various statutes as provided in the contentions of the government party. It would be helpful in future inquiries if the Tribunal was enlightened as to these facts as the absence of this information does not advance the case of those parties seeking a determination that the expedited procedure is attracted. I appreciate that in the context of a proposed prospecting licence covering only a small area, there are costs incurred in providing evidence in an inquiry. Even so, whether the subject matter of an inquiry is a small prospecting licence or a geographically large exploration licence, a certain level of evidence should be provided to enable the Tribunal to gain a proper appreciation of all of the factors that need to be evaluated when conducting a predictive risk assessment.
The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:
“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 Walley v Western Australia (2002) 169 FLR 437 Deputy President Sumner considered, in the context of Western Australia, the applicable legal principles governing expedited procedure objection inquiries (at 439 - 449). I adopt those findings for the purpose of this inquiry.
Aboriginal Heritage Surveys
[12] Mr Ritter of the Yamatji Land and Sea Council lodged an extensive Statement of Contentions of Objectors on behalf of the first native title party. In those Contentions a number of submissions were made, however, for present purposes, the only one which I wish to deal with is the failure of the grantee party to participate in an Aboriginal heritage survey. Mr Ritter made these submissions (at para 13):
“The grantee has not agreed to participate in an Aboriginal heritage survey of the subject area. This increases the likelihood that the sites and areas of significance within the tenement area will be impacted upon, as the grantee has stated that it does not wish to undertake an Aboriginal heritage survey, which will be the only way to adequately identify and protect these sites.”
[13] The Tribunal has pointed out a number of times that there is no statutory or legal obligation on a grantee party to fund, facilitate or participate in, an Aboriginal heritage survey – see e.g. Violet Drury & Ors on behalf of the Nanda People/Westerm Australia/Giralia Resources NL WO00/93, 18 May 2001 at [9] per Deputy President Franklyn, and my observations in Kevin Walley & Ors on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan WO00/427, 17 August 2001 at [27]. Similarly, if such a survey has not taken place, it is not open to infer that there will be a greater likelihood of interference with sites of particular significance. Such an inference cannot be made as it is predicated on a jump in logic. The task of the Tribunal is to determine, in the context of a section 237(b) assessment, the likelihood that prospecting or exploration activities by a grantee party will impact upon areas or sites of particular significance. To make that assessment there must first be demonstrated to be such areas or sites. Secondly, the Tribunal then considers the relevant legal regime governing exploration and like activities, the nature of the proposed exploration and mining activities, the stated intentions of the grantee, the particular sacredness of the area or site, the protections afforded by the relevant cultural heritage legislation and any other matters that are appropriate. In that context an Aboriginal heritage survey would do no more than confirm the location and (possibly) the particular sacredness of a site. However, a section 237(b) assessment already starts from that point. Whether or not a grantee party has funded such a survey or even given any support for it, is irrelevant when making a section 237(b) assessment, subject, of course to one matter. If the non-participation of a grantee party has resulted from a grantee party expressing hostility to issues of site protection and the like, and evidence was led that the grantee party would be likely, despite the legal regime in place, to interfere with an area or site, then this would be a matter that could legitimately be factored into a section 237(b) assessment. However, in the vast majority of cases non-participation in such survey has its genesis in monetary issues, particularly when the grantee party is a small operator and the area involved is relatively small or speculative in terms of returns on investment. In these circumstances although non-participation in a heritage survey is regrettable, and, no doubt has resulted in the Tribunal conducting an inquiry, inferences of the type suggested by Mr Ritter, or, indeed other adverse inferences, cannot and should not be drawn. It is not open to undertake a predictive risk assessment on the basis that there may be sites of particular significance and the fact that a heritage survey has not been undertaken increases the risk of inference to such possible sites. This is a case of requiring inferences to be drawn from speculation (ie the existence of sites) based on the non-occurrence of an event (ie the heritage survey). The logical starting point of a section 237(b) assessment is the finding of an actual site/sites which has/have been located and to which evidence has been led of particular significance. The only partial exception to this is with respect to site rich areas where the number and nature of sites is indicative that the whole locality is imbued with a pervasive spirituality.
The evidence
[14] The government party’s evidence establishes that the underlying land tenure of the proposed tenement is:
· Pastoral Lease 3114/716 (vested in Mt Welcome Pastoral Co Pty Ltd); and,
· Reserve RES 9701 (purpose of De Grey Mullewa Stock Route).
There are no Aboriginal communities located within the proposed tenement. In the Affidavits of Kenny Jerrold, Josephine Samson and Wilfred Hicks reference is made to native title holders residing in Cheeditha, Roebourne and Karratha. It would appear from the Affidavits that both Cheeditha and Roebourne are located in relative close proximity to the subject area. Kenny Jerrold deposes that Roebourne is located some 15 km from the proposed tenement, while the section 29 notice describes the location of the subject area as 17 km from Karratha.
The Aboriginal Sites Register reveals there are no sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA) within the area of this tenement.
The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the government party. As there is no evidence of the grantee party’s intentions in relation to the proposed tenement I have dealt with this matter on the basis that the grantee party will fully exercise its legal entitlements.
Material submitted by the first native title party
The first native title party lodged affidavits of Kenny Jerrold and Josephine Samson, whose evidence was not contested. Kenny Jerrold is a named applicant whilst Josephine Samson, though not an applicant, deposes that she is a tribal Ngarluma woman and has authority to speak for the Ngarluma people. Ms Samson is a member of the Ngarluma and Indjibarndi Claim Group Committee and the Ngarluma and Indjibarndi Heritage Committee and is therefore a member of the Ngarluma and Indjibarndi Native Title Claim Group. Accordingly, I accept that both Mr Jerrold and Ms Samson can speak about community and social activities and sites relevant to the claim group.
[19] The affidavit of Kenny Jerrold was sworn at Roebourne on 28 November 2002 before a Justice of the Peace and the affidavit of Josephine Samson was sworn at Roebourne on 14 November 2002 also before a Justice of the Peace. Each of these affidavits is set out below:
Affidavit of Kenny Jerrold
“I, Kenny Jerrold of Cheeditha Community via Roebourne in the State of Western Australia, being duly sworn make oath and say as follows:
1. I am a Yindjibarndi elder and an applicant on the Ngaluma/Injibandi) (WG6017/96) native title claim. I have authority to speak for Yindjibarndi People.
2. On Thursday October17 2002 I visited the proposed tenement P47/1119, (‘the proposed tenement”) and surrounding areas with Mr Michael Ryan, Legal Officer and members of the Native Title Claims group.
3. I am very familiar with the area surrounding the proposed tenement and the proposed tenement itself and know it well. The tenement is located very close to where I live in Cheeditha.
4. The proposed tenement is also close to Roebourne, which is about 15 kilometres away. A lot of people from Roebourne come to the tenement area to hunt animals and to collect the plants that grow.
5. The area of the proposed tenement and surrounds is good hunting ground. Ngarluma and Yindjibarndi people hunt kangaroo, goanna, porcupine, emu and bush turkey on the proposed tenement.
6. Other Ngarluma and Yindjibarndi people visit the area of the proposed tenement and surrounds whenever they can. Ngarluma and Yindjibarndi people hunt and collect bush tucker there most weekends because it is good hunting ground and easy to get to because it is close to Roebourne and Cheeditha.
7. There is a special tree on the tenement that Ngarluma and Yindjibarndi people burn in a smoking ceremony. Ngarluma and Yindjibarndi people use the smoke from this tree to discipline children. The smoking ceremony is a special ceremony to make sure the children learn to act in the proper way. Ngarluma and Yinjibandi people visit the tenement area to collect branches from this tree because we know that this is a place where it grows.
8. Annexure A is a map prepared by Pilbara Native Title Service. It shows registered Aboriginal sites near the proposed tenement. There are a lot of important sites on this map, but these are not the only important places in the area.
9. The tenement area is a very important place because we have church meetings there. We can’t have church meetings if there is prospecting and mining going on. So this is a community activity that there will be a big impact on.
10. The map at Annexure A shows an Aboriginal Site called Paradise Cavern. This is an important place because there is a story about this place and it is also a place where our old people used to live.
11. I am worried that the tenement area is close enough to Paradise Cavern to disturb that site. If the miner did a heritage survey he could tell us how he plans to access the tenement area, and we could advise him how to protect and respect the site.
12. There are important sites on the tenement area and close to the tenement area. I would like the prospector to do a Heritage Survey so we know exactly what the prospector wants to do and how it will impact on important sites.
13. Prospecting activities including using drill rigs, trucks and 4 wheel drives will damage the country. Some of the plants from which we collect bush tucker and bush medicines will be dug up and killed. Exploration activities will also frighten away the animals that we hunt and we would have to look elsewhere for food. If I saw machinery in the area I would feel hurt and upset inside. I would move on to another area because I know it would be a waste of time trying to hunt there. Prospecting activities in the area of the proposed tenement and surrounds would interfere with our practice of hunting and collecting bush tucker.”
Affidavit of Josephine Samson
“I, Josephine Samson of Roebourne in the State of Western Australia, being duly sworn make oath and say as follows:
1. I am a tribal Ngarluma woman and I have authority to speak for the Ngarluma people, my elders and my ancestors.
2. My husband’s traditional country is around Tom Price and we divide our time between Tom Price and Roebourne.
3. On Thursday October 17 2002 I visited the proposed tenement P47/1119, (‘the proposed tenement’) and surrounding areas with Mr Michael Ryan, Legal Officer of the Pilbara Native Title Service and three Yindjibarndi men, Alum Cheedy, Bruce Woodley and Kenny Jerrold.
4. We used the maps at attachment A and attachment B to identify the location of the tenement. The Yindjibarndi men and I were able to help Michael Ryan locate the proposed tenement because we know that area very well, including the sites, the roads, the fence lines and the windmills.
5. I am very familiar with the area surrounding the proposed tenement and the proposed tenement itself and know it well.
6. It is important that future generations of Ngarluma and Yindjibarndi people can go to this place. The beauty of the land in its natural state is central to our culture.
7. I am not anti-mining, but this prospector should behave in a way that shows respect to Ngarluma and Yindjibarndi people. We want to know what people are doing on our country.
8. The area of the proposed tenement and surrounds is good hunting ground. Ngarluma people hunt animals there, especially kangaroos.
9. The area of the proposed tenement is a good place to hunt and to visit because it is on Mt Welcome Station, which is an Aboriginal owned pastoral lease. It can be difficult to hunt, camp and fish on pastoral leases owned by non-Aboriginal people because the pastoralist makes rules about how long we can stay and how many cars we can take.
10. There is a lot of bush tucker in the area of the proposed tenement and surrounds. And this is the best time of year to collect the bush gum which grows on particular trees in the tenement area.
11. I visited the tenement area again a few days after going there with Michael Ryan. I went there with a group of Ngarluma and Yindjibarndi people to collect the bush gum.
12. The tenement area is important because it provides food and medicine for our people. We survive off the plants there. Not being able to gather bush foods and medicines on the tenement area will have a big effect on the daily lives of people in the community.
13. The tenement area has a sandy soil which is good for cooking. I have cooked damper, emu and kangaroo tails on the area of the proposed tenement.
14. The tenement is easy to reach. On Thursday 17 October we reached there by following the Cherratta Road, but there is also a track down from the North West Coastal highway.
15. I sometimes visit the area of the proposed tenement on bush excursions with tribal elders. On one of these excursions a few years ago an elder showed me a rare native tobacco tree. The tenement area is the only place I have ever seen this tree, and I am worried that it may be threatened.
16. I am a member of the Pilbara Aboriginal Church which is based in Roebourne. We sometimes have bush meetings and the tenement area is one of the main places for bush meetings.
17. At bush meetings, a large number of church members congregate to camp together and worship over several days. The first bush meeting on the tenement area was in the 1970s and the most recent one was last year.
18. If the prospecting licence is granted, the tenement area will not be a safe or pleasant place for bush meetings. This will have a major effect.
19. Prospecting activities including using drill rigs, trucks and 4 wheel drives will flatten and destroy some of the plants from which we collect bush tucker. Prospecting activities will also frighten away the animals that we hunt and we would have to look elsewhere for food. Prospecting activities in the area of the proposed tenement and surrounds would interfere with our practice of hunting and collecting bush tucker.
20. Granting a licence to allow a prospector to come in and dig up this place will make it unsafe and inhospitable for church meetings. This will have a big effect on our community
21. I believe that conduct of prospecting activities within the proposed tenement area will involve a major disturbance to the land.”
The second native title party lodged affidavits of Wilfred Hicks and Rory O’Connor. Again, the evidence deposed to by both of these gentlemen was not contested. Mr Hicks is a named applicant on the Register of Native Title Claims for WC98/40, whilst Mr O’Connor is a consultant anthropologist. For the purposes of this inquiry I will only include within this determination the text of Mr Hick’s affidavit.
The affidavit of Wilfred Hicks was sworn at Roebourne on 10 January 2003 before Garry Bailey a Justice of the Peace and is set out below:
Affidavit of Wilfred Hicks
“I, Wilfred Hicks, Pensioner, of Unit 4, 30 Shell Street, Roebourne, in the State of Western Australia being duly sworn make oath and say as follows;
1.I am an elder of the Wong-Goo-Tt-Oo Group and the objector in this matter. I am a named claimant in the Wong-Goo-Tt-Oo Native Title Group in the proceedings before the Federal Court.
2. I instructed my solicitors to lodge this objection on behalf of the Wong-Goo-Tt-Oo Group as a whole and am authorised by the Wong-Goo-Tt-Oo Group to swear this affidavit on their behalf.
3.I am very familiar with the area surrounding and including the proposed tenement P47/1119.
4. The Wong-Goo-Tt-Oo People by traditional rights hunt and gather bush foods and medicines for traditional use. They also collect natural objects and substances for use in their cultural practises. The Wong-Goo-Tt-Oo People hunt and gather in a large area of land, which includes the land under the objection. Proposed works on these areas may prevent the carrying out of such cultural pursuits.
5. The Wong-Goo-Tt-Oo People visit the tenement area and its surrounds because the land is situated near Roebourne and Karratha where we live.
6. The Wong-Goo-Tt-Oo People practice specific and unique land related lore and customs on the land. The Wong-Goo-Tt-Oo People also practice a traditional lore and custom, which is specific to their traditional lands and not practised by other Aboriginal Groups. These traditions are carried out over areas, which are included in the objection.
7. The Nickol River is one area that is very significant to the Wong-Goo-Tt-Oo People because our ancestors used to go there and there are Dreaming sagas associated to the area. The Nickol River does not pass through the proposed tenement but it is very close to it and the area is significant to Wong-Goo-Tt-Oo People.
8. I have not yet had the opportunity to conduct a detailed inspection of this area and it has not been possible to obtain the assistance of any experts in identifying sites in this area.
9. I do know of sites in the general area of the proposed tenement and given the existence of these sites, I believe it is likely that the tenement contains Aboriginal Heritage sites.
10. I am extremely worried about what may happen to our land, and any sites that may be on it if the grantee party does not consult us before commencing work in this area. Exploration and prospecting work could destroy sites of particular significance to Aboriginal people and if a heritage survey is not conducted before work commences then part of our history could be destroyed forever.
11.I swear this affidavit in opposition to the application of the expedited procedure in this matter.”
Section 237(a) – Interference with the carrying on of community or social activities
[22] Mr Jerrold and Ms Samson depose at some length about various community and social activities carried on by members of the Ngarluma Indjibarndi claim group.
[23] Mr Jerrold deposes that he lives near the proposed tenement and knows the subject area (and surrounds) quite well. According to Mr Jerrold, the subject area is “good hunting ground” and members of the claim group visit the area for hunting and the collection of bush tucker most weekends. In addition there is said to be a special tree growing on the proposed tenement, the leaves and branches of which are used for special ceremonies. It is also pointed out that this area is special because church meetings are held there, and prospecting activities would interfere with such activity.
[24] Ms Samson also deposes that she knows the subject area well and that it is frequently accessed by members of her claim group for hunting, especially for kangaroos. Importantly she points out that the proposed tenement is partially located on Mt Welcome Station which she says is an Aboriginal owned pastoral lease. She contrasts the difficulties which some native title holders have in accessing some pastoral properties for traditional activities with that prevailing on Mt Welcome. The information supplied by the Department of Mineral and Petroleum Resources confirms that the pastoral lease is “Indigenous Owned”. Ms Samson also states that the area of the proposed tenement and its surrounds produce large amounts of bush tucker, including bush gum, as well as bush medicine. In addition she refers to a rare native tobacco tree which grows on the subject area and which may be impacted upon by prospecting. Like Mr Jerrold, she refers to bush meetings held by the Pilbara Aboriginal Church on the subject area. It would appear from her affidavit that the bush meetings held by the Church include camping and worship over several days, but occur on this area infrequently.
Mr Hicks, on behalf of the second native title party, also deposes that members of his claim group hunt and gather in a large area, including the proposed tenement. However, the nature of these activities, their frequency, their importance to the claim group, the numbers participating and the frequency of these activities, is not explained by Mr Hicks.
It is important to re-iterate that the community and social activities to which a section 237(a) predictive risk assessment is directed, are only those activities which are a manifestation of claimed native title rights and interests. The fact that members of a native title claim group engage in activities per se does not mean that all such activities can necessarily be relied upon in an expedited procedure objection inquiry. The Act is aimed at the recognition and protection of native title where it exists. The future act process is an integral part of the overall scheme for the comprehensive protection of native title rights and interests. It is not, however, a platform to enable objectors to raise any type of activities carried out by members of the claim group which are not part of the claimed native title rights and interests and then suggest that the proposed future act may interfere with them – see Ward v Northern Territory (2002) 169 FLR 303 at 321.
However, the Courts have recognised that within certain parameters native title is an evolving concept. In Yorta Yorta v Victoria [2002] HCA 58 Gleeson CJ, Gummow and Hayne JJ observed (at [44]): “Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and the respondents accepted that there could be ‘significant adaptions’”. Traditional laws and customs do change to reflect the changed social, economic, political and environmental circumstances faced by native title holders. Provided that the evolved or adapted customs can be “properly described as traditional laws and customs” (at [56]), it is open to the Tribunal to have regard to them when making a section 237 predictive risk assessment. In this context it is open to the Tribunal to take into account the fact that members of the first native title party are members of an indigenous church which meets on the subject area for religious services and related activities. Traditional aboriginal society was intensely spiritual and attendance at church services and related religious activities are a modern manifestation in some aboriginal societies of traditional spiritual activities. Insofar as those spiritual activities manifest themselves in a physical way on the subject land and waters, they quite properly can be taken into account when conducting a predictive risk assessment pursuant to section 237(a).
The Tribunal has before it evidence that the subject area is visited regularly by members of the first native title party for hunting, gathering and religious purposes. Such visits would appear to occur on a regular basis and play an important part in the lives of at least some native title holders. In assessing the likelihood of the proposed future act interfering directly with the carrying on of community or social activities of members of the respective claim groups, I have taken into account the following factors:
(a)the proposed tenement is mostly (140.94 ha of the 155.98 ha) located within an indigenous owned pastoral lease. The Act itself recognises the special nature of such pastoral leases – see s 47 and the comments in Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 at 176-185. However, for the purposes of this inquiry there are two matters which are of particular importance. The first is that normally when a proposed tenement falls within the boundaries of a pastoral lease, the Tribunal is required to take into account other lawful activities that may impact upon the community and social activities of native title holders. Importantly, the Tribunal takes into account the ongoing lawful activities of pastoralists, which activities prevail over any native title rights and interests – see s 44H. In this instance, however, the relevant pastoral lease is owned by indigenous persons, and the type of issues normally factored into assessing likely interference do not automatically occur. The second, and critical, issue is the particular evidence presented by the first native title party. Ms Samson specifically deposes that she and other members of her claim group find it easy to enter upon the pastoral lease and carry out traditional activities. I infer from her affidavit that the type of restrictions which may otherwise be placed on native title holders engaging in traditional activities on some pastoral properties do not occur in this instance. I further infer that members of the first native title party claim group are able to freely enter the pastoral lease and engage in traditional activities without undue restrictions. In short, I find that although much of the proposed tenement is located on pastoral lease land the normal legal implications that would flow from that state of affairs cannot be drawn in this matter due to the particular ownership of the pastoral lease and the manner in which the lessees of the pastoral property interact with the native title holders in this inquiry;
(b)the grantee party has not made any submissions on how it will exercise the rights that would be granted to it under the prospecting licence. It is appropriate that I apply the presumption of regularity to the grantee party, however, as I have previously noted I have conducted this inquiry on the basis that the grantee party will exercise its legal entitlements to the maximum extent permitted by law;
(c)the evidence provided by Mr Jerrold, Ms Samson and Mr Hicks has not been contested or challenged in any manner by either the government or grantee parties. I see no reason for not accepting the evidence of these persons without qualification, so far as community and social activities are concerned, as there is no material before the Tribunal that would cast any doubt on the veracity of their affidavits or generally on the reliability of their evidence;
(d)the evidence of Mr Jerrold and Ms Samson highlights that the area of the proposed tenement is accessed on a regular basis by native title holders for hunting, gathering and ceremonial purposes. The evidence further suggests that this area is regarded as a particularly important place because it is a relatively rich source of bush foods and medicines and also because the indigenous pastoral lessees freely allow access for traditional activities;
(e)the area of the proposed tenement is not even one square mile. While the very nature of prospecting activities would normally not be anticipated to be high impact, nonetheless there is almost certain to be an intersection between the carrying on of community and social activities and prospecting. Having regard to the small area of the proposed tenement it is likely that this intersection would not be minor or trivial in impact, but potentially quite disruptive;
(f)it would appear that once a year the subject area is used for prolonged church activities. Understandably there is concern that prospecting activities during this time would be disruptive and could result in the cancellation of the church service. I find that this concern is well founded and that there is a likelihood that prospecting activities could result in the disturbance of these community and social activities;
(g)there is no evidence before me of the nature of the proposed prospecting activities, whether they will be limited to weekdays or particular seasons or whether the whole of the subject area or only part of it will be subject to prospecting. I have proceeded on the basis that prospecting will occur throughout the whole of the proposed tenement and I have not excluded in my risk assessment any particular days or seasons when assessing the likelihood of disturbance; and
(h)Ms Samson refers to a rare and traditionally important tobacco tree which grows on the subject area and Mr Jerrold refers to a special tree the branches of which are collected and burnt in a smoking ceremony. I have inferred from this evidence that although the subject area is small, nonetheless it is of great significance to native title holders and plays an integral part in the carrying of community and social activities.
[29] The proposed tenement is in the general vicinity of the tenement considered by Deputy President Franklyn in Wilfred Hicks & Ors/Western Australia/Blackjack Resources Pty Ltd WO01/233 and 234, unreported, 4 November 2002. Likewise Deputy President Franklyn had before him affidavits from Mr Hicks, Ms Samson and Mr Jerrold. The contents of the various affidavits are not that dissimilar from the affidavits I have considered. Also, as in this inquiry, the grantee party elected to provide no contentions or evidence. It would appear that the evidence supplied by the government party was also of the same type that I have considered. Deputy President Franklyn found (at [11]) that it was likely that the grant of the exploration licence would be likely to interfere with the carrying on of community or social activities of native title holders.
I have likewise come to the same conclusion in this inquiry. The evidence of community or social activities is detailed and uncontested. It demonstrates that such activities are carried on regularly and by a significant number of native title holders. There is no evidence before me that mining, exploration or prospecting has actually taken place on the subject land, nor is there any evidence of how the grantee party will exercise its legal entitlements. Although the subject area is small in relation to the overall land area accessed by native title holders, nonetheless, this particular area is apparently important. There is also no evidence that pastoral activities interfere with the carrying on of community or social activities.
[31] The proper approach to understanding and applying section 237(a) in an expedited procedure objection inquiry was explained by French J in Smith v Western Australia (2001) 108 FCR 442. His Honour pointed out (at 451) that the concept of interference is “to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of social or community activities are outside the scope of the kind of interference contemplated by the section.” French J also held that the evaluation is contextual. He said: “In assessing the risk of direct interference the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial.” I find that the grant of the future act would be likely to have a substantial impact on the community and social activities of native title holders and that there are no other factors, when applying a contextual evaluation, which would otherwise minimise the extent of that interference.
Section 237(b) – Areas or sites of particular significance and
Section 237(c) - Major disturbance to land or waters
Having regard to my finding with respect to section 237(a) it is not necessary to make a predictive risk assessment pursuant to either of these paragraphs.
Determination
The determination of the Tribunal is that the grant of prospecting licence 47/1119 to Cossack Resources Pty Ltd is not an act attracting the expedited procedure.
John Sosso
Member
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