Raymond Ashwin on behalf of the Wutha People/Western Australia/Trevor John Dixon
[2001] NNTTA 110
•17 October 2001
NATIONAL NATIVE TITLE TRIBUNAL
Raymond Ashwin on behalf of the Wutha People/Western Australia/Trevor John Dixon, [2001] NNTTA 110 (17 October 2001)
Application No: WO01/8
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Raymond Ashwin on behalf of the Wutha People (native title party)
- and -
The State of Western Australia (Government party)
- and –
Trevor John Dixon (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Mrs Jennifer Stuckey-Clarke, Member
Place: Perth
Date: 17 October 2001
Catchwords: Native Title – future act – expedited procedure objection application – proposed grant of a prospecting licence – evidentiary burden on the objector – applicability of s237(a) – act attracts expedited procedure
Legislation: Native Title Act 1993 (Cth)
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases: Smith v Western Australia [2001] FCA 19
Mineralogy Pty Ltd v NNTT (1997) 150 ALR 467
Roy Dixon on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Limited/Northern Territory, NNTT DO00/1-DO00/7, unreported, Deputy President Franklyn, 23 April 2001.
Western Australia/Derrick Smith & Ors on behalf of Gnaala Karla Boodja People/South Coast Metals Pty Ltd, NNTT WO99/511, unreported, Deputy President Franklyn, 23 June 2000.
REASONS FOR DETERMINATION
Background
By notice dated 29 September 2000 issued pursuant to section 29 of the Native Title Act 1993 (“the Act”) the State of Western Australia (“the government party”) advised its intention to grant prospecting licence 37/6104 (‘the prospecting licence”) to Trevor John Dixon (“the grantee party”). The prospecting licence was over an area of 101.97 hectares located 101 kilometres north of Menzies, in the Shire of Leonora (lat. 28o 48 minutes, long. 121o 19 minutes). The notice explained that the grant of a prospecting licence authorises the applicant to prospect for minerals for a term of four years from the date of grant. The notice included the statement:
“the State of Western Australia considers that these acts are acts attracting the expedited procedure.”
The notification date was 4 October 2000 and the closing date for objections was 5 February 2001.
On 5 February 2000, Raymond Ashwin on behalf of the Wutha People lodged an objection (by way of Form 4 made pursuant to section 75 and 76 of the Act and the Native Title Tribunal Regulations 1993) with the Tribunal to the statement in the section 29 notice that the grant of the prospecting licence attracted the expedited procedure.
In paragraph 7 of Form 4, objectors are required to include a statement of reasons why the proposed act is not one attracting the expedited procedure, including a statement of the likely impact of the act on the community or social activities of the native title holders, areas or sites of particular significance and any lands or waters concerned. The objector provided in paragraph 7, the following statement:
“The objector believes that the proposed grant is not an act attracting the expedited procedure because it:
a. will directly interfere with the carrying on of the community and social activities of the native title claimants;
b. will interfere with areas or sites of particular significance to the native title claimants;
c. will involve major disturbance to the land and waters concerned.”
Paragraph 8 of Form 4 requires objectors to outline the type of evidence that will be adduced before the Tribunal in support of the objection. The outline is as follows:
“The claimants can produce direct and other admissible evidence in support of this objection.
The claimants can give oral evidence of the cultural significance of the area, and this can be supported by the oral evidence of anthropologists and by other documentary evidence. The claimants can give oral evidence of their personal activities and knowledge in respect of the area and communal histories; they are also able to give evidence of having exercised native title rights and interests on claim land and of the impact of the proposed act on their community and social activities.
This oral evidence can be supported by documents detailing previous incidents of “major disturbance” resulting form activities like those proposed on the mining tenements.”
On 15 June 1999, the Objector’s Application for Determination of Native Title was registered by the Tribunal (Wutha People WC99/10) in relation to the area of land which overlaps the area subject to the section 29 notice concerning the proposed grant of the prospecting licence. The Objector was therefore a ‘native title party’ according to section 30 of the Act and entitled to make an objection application. The Tribunal accepted the objection application on 2 March 2001.
The government, grantee and native title parties were notified of the objection and a preliminary conference was held on 14 March 2001. The government party lodged with the Tribunal a statement of its contentions on 1 May 2001 and a copy of the documents upon which it proposed to rely on 26 April 2001. Following an adjourned listing hearing on 29 May 2001 in which the Member’s instructions to amend Directions were advised, the native title party lodged its statement of contentions and affidavit evidence on 12 June 2001.
At the adjourned listing hearing of 6 July before Deputy President Sumner, the matter was referred for inquiry with a determination to be made on the papers. The grantee party was given leave to submit a statement of contentions, which was lodged with the Tribunal on 12 July 2001.
The representatives for the parties were Kathy Burns of the Goldfields Land Council for the native title party, Bill O’Donnell of Amalgamated Prospectors and Leaseholders Association of WA Inc for the grantee and the Crown Solicitor’s Office for the government party.
On 16 July 2001, Deputy President Sumner appointed me as Member to conduct the inquiry.
On 4 September 2001 the Tribunal wrote to the parties convening a further listing hearing on 13 September 2001. At that time an objection to the Tribunal’s jurisdiction challenging the validity of the section 29 notice issued by the State of Western Australia based upon the decision of the Tribunal in Roy Dixon on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Limited/Northern Territory, NNTT DO00/1-DO00/7, 23 April 2001, had been raised in another matter before me for determination (WO01/9). Since the objection had been raised in that matter, I convened the further listing hearing to ask whether any of the parties wished to raise any objection to the Tribunal’s jurisdiction in this matter. At the listing hearing all parties confirmed that they raised no objection of any kind to the Tribunal’s jurisdiction to determine this matter.
Whether or not jurisdiction is contested the Tribunal must satisfy itself that it has jurisdiction to conduct its inquiry on the basis of the evidence before it. In Mineralogy Pty Ltd v NNTT (1997) 150 ALR 467 at 473 Carr J. referred with approval to the dictum of Barton J. in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co. Ltd (1911) 12 CLR 398 at 428:
“Where jurisdiction is disputed, adequate and careful inquiry is still the duty of the court at first instance, just as it may become the duty of the superior court.
On the other hand, where jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will, to the mind of the tribunal, be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.”
Since no party has sought to demonstrate by evidence that the section 29 notice issued by the government party in this matter was not issued and notified in compliance with the Act, there is, in my view, no sufficient evidential basis upon which the Tribunal could find that it lacks jurisdiction to determine this matter. I will therefore proceed to determine this matter on the papers.
The Evidence
The documents produced by the government party disclose that there are no registered sites on the proposed tenement and that there are no Aboriginal communities in its vicinity. Further, the Tengraph map which accompanied the section 29 notice shows that the whole of the area of the proposed tenement is within Reserve 9699 and the Land Tenure document evidences that the Reserve, the purpose of which is the Peak Hill-Leonora Stock Route, is vested in the Mines Department. No details in relation to the proclamation of the Reserve or any other particulars have been evidenced before the Tribunal.
The documentary evidence of the government party and the grantee party does not otherwise address the question of interference with community life within the meaning of s.237(a) of the Act nor does it directly deal with the issue of major disturbance to the land or the creation of rights which involve major disturbance to land.
The grantee has led evidence that the proposed tenement is surrounded on all sites by four tenements, namely:
P37/5874, 190 hectares, granted on 27 March 2000 to Roenmill Pty Ltd;
P37/5932, 105 hectares, granted on 7 August 2000 to Roenmill Pty Ltd;
P37/5934, 179 hectares, granted on 7 August 2000 to Roenmill Pty Ltd;
P37/5941, 154 hectares, granted on 17 November 2000 to Gutnick Resources NL.
There is also in evidence a letter from the grantee to the Goldfields Land Council dated 12 April 200l in which Mr Dixon asserts that those tenements were applied for and granted without objection and without any heritage survey being completed.
The native title party relies upon the affidavit of Ron Harrington-Smith sworn 12 June 2001. He deposed as follows:
I am one of the Applicants for the Determination of Native Title WC 99/10 that has been lodged with the National Native Title Tribunal.
This statement is in support of the Applicant’s objection to the inclusion of a statement that the act is an act attracting the expedited procedure.
I am a spokesperson for the Wutha people and I have native title rights and interest(sic) in the country where the government wants to grant a prospecting licence P37/6104 (“the said licence”).
The Wutha people’s native title rights and interests, according to traditional Aboriginal law and custom, mean that we are the custodians of sites, and must protect and care for country,which includes this area.
While all the country for which the Wutha people have native title rights and interest(sic) must be cared for, of particular importance are those areas used for hunting and gathering,and those surrounding and including sites of spiritual significance which are fundamental to Aboriginal customary law.
Wutha country, including this area, is of particular significance to me because the Wutha people have lived and travelled through there for generations.
The Wutha people have, and continue to utilise the area for hunting and food gathering. There are significant water sources in the country including the subject land, and we are concerned that any damage to the area may be detrimental to the Wutha people, both physically and spiritually.
The whole area is significant in that it contains sacred and other sites of significance. These are associated with ceremonies and other aspects of Aboriginal customary law.
People who come on to the land without consulting the people who speak for that country may interfere with areas that are of great importance to the Wutha people. Given the acts allowable by the said licence, I believe it will interfere with both the physical and spiritual connections which we have with our country. The Wutha people seek to avoid any damage or interference to these sites of spiritual and cultural significance.
The Wutha people are not opposed to exploration activity but ask that the Grantee Parties take care not to damage that land and the sites in it, given that the said licence broadly covers what the Grantee Party can do to the land and not what the Grantee Party intends to do. The Wutha people ask that the Grantee Parties undertake proper survey of this tenement. The Wutha people are willing to help the Grantee Party in a heritage protection survey before the Grantee Party commences their operation.”
The Parties’ Contentions
Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are the holders… 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… 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.”
The government party contended at paragraph 4 of its contentions that the granting of the proposed tenement is not likely to interfere directly with the carrying on of the community or social activities of the objectors in relation to the land for the following reasons:
“(a)there are no Aboriginal communities situated on, or in the vicinity of, the proposed tenement;
Reserve
(b) in relation to the land the subject of Reserve 9699, section 24 of the Mining Act 1978 provides that mining on reserve land requires the written consent of the Minister for Mines who may refuse his consent or give his consent subject to such terms and conditions as specified in the consent.
(c) before giving his consent the Minister must, pursuant to subsections 24(3)-24(7) of the Mining Act, consult with and obtain either the concurrence or the recommendation of the Responsible minister or the Responsible Minister and the body or person in which the control and management of the reserve is vested.
(d) Section 26 of the Mining Act provides for terms and conditions that may be imposed pursuant to section 24 of the Mining Act by the Minister for mines on the consent for mining; and
(e) section 46 of the Mining Act 1978 deems every tenement of the type proposed to be granted subject to the holder fulfilling certain conditions set out in the said section, i.e. reporting discoveries of minerals, making safe any holes, pits, trenches,etc and preventing damage to property and livestock.”
The balance of the government party’s contentions in respect of sub sections 237(b) and 237(c) was in the standard form and I will not reproduce them in full in these reasons.
The native title party’s contentions are set out in full below:
“1.Country in respect of which the tenement is intended to be issued is country over which there is an existing claim for recognition of Native Title pursuant to the Native Title Act 1993.
2. Pursuant to traditional Aboriginal Law and Custom the country forms part of the cultural landscape from which Aboriginal people draw their identities and intersects with storylines and dreaming tracks, knowledge of which is passed through generations of Aboriginal people with traditional connection to that country.
3. Any potential ground disturbance of that country may interfere with the dreaming stories of that cultural landscape thus interfering with the capacity of present and future generations of Aboriginal people to interpret those stories. This militates against those persons being able to freely determine the social and cultural arrangements from which they draw their identity and thus find meaning in their lives.
4. It is the objector’s contention that the impact upon Native Title by the proposed activity allowed pursuant to the tenement is such that it is a matter that should be negotiated with registered claimants for Native Title. The objector thus contends that subsection 237(a) of the Native Title Act applies to the decision to seek application of the expedited procedure.
5. The objector contends that the tenement area should be the subject of a heritage protection survey conducted with Aboriginal participants in order that the cultural landscape associated with traditional stories, any sites of significance and the hunting grounds are not unnecessarily disturbed.”
The grantee party relied upon a “Supporting Statement of Contention by APLA [Amalgamated Prospectors and Leaseholders Association of WA Inc]” which said relevantly:
“1.As is evident by (sic) the map supplied by Mr Dixon, the following tenements [surrounding the applicant’s tenement and set out at para above] have been granted to the respective parties without either objection or Heritage Surveys being completed….
2. All of these tenements surround the applicant’s tenement.
3. The area of the applicant’s tenement is 14% of the total of the tenements identified.
4. Contrary to the Native Title Party’s [contention in paragraph 4 of their contentions], it is considered that objecting to an area of 14% while allowing the grant of tenements around it, does not support the fact that subsection 237(a) applies and the intended act by the Government Party is one that is appropriate under the expedited procedures of the NTA.”
Reasoning
Section 237(a)
The evidence adduced by the native title party does not directly contradict the government party’s evidence that there is no Aboriginal community in the vicinity of the proposed tenement. Further, the grantee’s evidence is to the effect that the land surrounding the tenement is in its entirety the subject of future mining activity and that the granting of those tenements was not opposed by the native title party. The native title party gave no evidence in relation to these matters.
The affidavit of Mr Harrington-Smith deposes in general terms in paragraph 7 to hunting and food gathering activities on the area of the proposed tenement and to the existence of “significant water sources” thereon. No detail in respect of the location of those water sources or as to why they were significant was given. He also deposes in paragraph 6 to the fact that the Wutha people “have lived and travelled through” the claim area, including the tenement area, “for generations”. However, no specific detail at all is given of the nature and frequency of these activities in the present era or any reference given to the specific sites or areas on the proposed tenement at which these activities are currently conducted. Nor is there any detail given as to any contemporary Aboriginal community from which the Wutha people travel to the area of the proposed tenement to conduct such activities.
In Smith v Western Australia [2001] FCA 19 at [26-27], Justice French said in relation to the interpretation of section 237(a):
“It is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure…..The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. It must be substantial in its impact on community or social activities….The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act 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.”
Deputy President Franklyn in Derrick Smith & Ors v South Coast Metals Pty Ltd, WO99/511, 23 June 2000, construed the phrase “interfere directly with the carrying on of community or social activities” in section 237 as amended as being “limited to interference with the physical aspects of the carrying on of community or social activities of native title holders”. That construction was not overturned on appeal although Justice French did set out the legislative history of the amendment at [21-22] of his judgment. The Deputy President’s view is consistent with the view of the majority of the Full Court of the Federal Court in Western Australia v Ward (2000) 170 ALR 159 and with the purport of the Explanatory Memorandum and Supplementary Memorandum. Further reading of the extensive parliamentary debates in relation to the amendments made to the section in 1998 does not cast any other light upon Parliament’s intention. In my view, Parliament must be taken to have intended by its final amendment to section 237(a) to require direct interference with the carrying on of community or social activities in the sense that those activities involve physical use and enjoyment of the land.
In my view that there is insufficient specific and relevant evidence adduced by the native title party on the basis of which I am able to hold that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of the holders of native title on the land comprising the proposed tenement within the meaning of section 237(a) of the Act. Further, the grantee party has contended that the Tribunal should have regard to the fact that the proposed tenement is totally surrounded by land over which mining tenements have been granted unopposed by the native title party. In my view, this is also a relevant matter to be taken into account in concluding that the act is not likely to interfere directly with the carrying out of community or social activities by the native title party.
Section 237(b)
Section 237(b) is to be read so as to give appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to the native title holder in accordance with tradition as Carr J. noted in Cheinmora v Striker (1996) 142 ALR 21 at 34-5. Further, in Western Australia/Winnie McHenry, WO 98/125, Deputy President Franklyn said that the sites must be “capable of identification” and the significance to the holders of native title must be established on the evidence. On the evidence before me, whilst Mr Harrington-Smith deposes in general terms to the significance of sites generally on the claim area, which includes the area of the proposed tenement, there is insufficient evidence of the existence of sites capable of identification. Consequently, the issues of the particular significance of the sites and of any likelihood of interference with them do not arise for determination.
Section 237(c)
On the basis of the evidence before me, I conclude that the exercise of the rights conferred by the exploration licence could result in some disturbance to land in the area of the proposed tenement. However, having regard to the nature of the conditions and regulatory regime which would apply to the exercise of the exploration licence when granted, the fact that there is no Aboriginal community in the vicinity of the proposed tenement and to the unsatisfactory generality of the evidence led by the native title party, I find that the grant of the exploration licence 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 such lands and waters.
Determination
The Tribunal determines that the grant of prospecting licence 37/6104 is an act which attracts the expedited procedure.
J. Stuckey-Clarke
Member
0
5
0