Richard Evans on Behalf of the Koara People/Western Australia/Mount Margaret Nickel Pty Ltd
[2001] NNTTA 141
•5 December 2001
NATIONAL NATIVE TITLE TRIBUNAL
Richard Evans on behalf of the Koara People/Western Australia/Mount Margaret Nickel Pty Ltd, [2001] NNTTA 141 (5 December 2001)
Application No: WO01/145
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
RICHARD EVANS ON BEHALF OF THE KOARA PEOPLE (Native Title Party)
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THE STATE OF WESTERN AUSTRALIA (Government Party)
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MOUNT MARGARET NICKEL PTY LTD (Grantee Party)
REASONS FOR DETERMINATION
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 05 Dec 2001
Catchwords: Native Title – Future Act – expedited procedure objection – whether each of the provisions of S237 are satisfied by the evidence – proposed mining tenement in area of considerable mining activity and on land traversed by a road, a stock route and including a reserved Resting Place for Travellers and Stock – lack of relevant evidence by Objector – determination that expedited procedure attracted and future act may be done.
Legislation:Native Title Act 1993 (Cth), Mining Act 1978 (WA)
Cases: Derrick Smith v State of Western Australia (2001) FCA 19
Dann V State of Western Australia (1997) 74 FCR 391
BACKGROUND
On 16th April 2001, the State of Western Australia (the State) gave notice under Section 29 of the Native Title Act (The Act) that it may grant exploration licence (EL37/639) over 18.08 square kilometres of land, 68 kilometres south easterly of Leinster (Centroid Lat 28° 29 minutes, long 120° 57 minutes) in the Shire of Leonora, to Mount Margaret Nickel Pty Ltd (the Grantee). The notice included a statement that the State considered the grant to be an act attracting the expedited procedure. The notification date on the notice is 21st March 2001.
On 19th July 2001, Richard Evans on behalf of the Koara People (Native Title Claim WC95/1 registered 8th September 1995) (the Objector) objected to the inclusion in the said notice of such statement. The grounds of such objection are set out in Paragraph 7 thereof as follows:-
“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.”
Directions were given by the Tribunal requiring the State to provide to the Tribunal and the other parties, on or before the 26th September 2001, a statement of its contentions and all relevant documents including certain specified documents and information; the Objector to provide to the Tribunal and other parties, on or before the 3rd October 2001, a statement of its contentions, a copy of all documents relevant to the inquiry including any Affidavits to be relied on, (special provision being made for documents of a confidential nature), and a statement of the evidence to be given by any witness for the Objector; and the Grantee to provide to the Tribunal and the other parties, on or before the 10th October 2001, a statement of its contentions, a copy of each document relevant to the inquiry including any affidavits to be relied on, (special provision being made for documents of a confidential nature), and a statement of the evidence to be given by any witness for the Grantee Party. A Listing Hearing was set for the 17th October 2001.
The State duly lodged the documents required of it and the specified information. The documentary evidence and information provided by the State and served on the other parties is unchallenged. It reveals the area of 18.078 square kilometres referred to in the Section 29 Notice as the area of the proposed exploration licence to overlap current mining leases 37/383 to 37/386 (inclusive) and prospecting licences 37/5950 and 37/5951. By virtue of the provisions of section 57 (2e) of the Mining Act 1978 (WA), so much of the area of the proposed exploration licence as overlaps those mining tenements is unavailable for exploration, and so for inclusion in the grant of exploration licence 37/639. That fact is recognised in the State’s documents in the first schedule to the Conditions and Endorsements which will apply to the proposed tenement (if granted), the same expressly stating that mining leases 37/383 to 37/386 (inclusive), and prospecting licence 37/5950 and 37/5951 are not included in the Grant. Otherwise the State’s contentions and documents make no reference to the fact that the area of EL37/369 as claimed is so reduced. The tengraph map provided by the State, said to show the location of the (proposed) tenement boundaries, shows as the proposed tenement the full area claimed of 18.08 square kilometres. The State’s tengraph map also shows “The Old Agnew Road” and a Stock Route (reserve 9699) to traverse the land available for exploration (“the available land”) which also includes land reserved as a Resting Place for Travellers and Stock (Reserve 3731). It further shows a telegraph transmission line to cut across that available land at its north east corner. The Schedule of Conditions (lodged by the State) to apply to the proposed tenement if granted refer to an aerial landing ground and require that its use be not interfered with and that “mining thereon” be confined to below fifteen (15) metres from the natural surface. Those conditions also prohibit interference with the transmission line or the installations in connection therewith and require the rights of ingress to and egress from that facility to be preserved to the owners thereof. Consent to mine on the Resting Place for Travellers and Stock (Reserve 3731), and the Peak Hill Leonora Stock Route (Reserve 9699) is given subject to no mining operations being carried out on either which restrict the use of the same. The State’s tengraph map also shows, (additionally to the overlap with mining leases M37/383 to 37/386 inclusive), the whole of the area shown on that map as EL37/369 to be virtually surrounded by current mining tenements (a portion of its eastern boundary including that of the available land adjoins an area the subject of a tenement application) and to be situated well within an area that is subject of numerous other current mining tenements and applications for mining tenements. It also shows an aerial landing ground on mining lease 37/386 within the boundaries of the land claimed as EL37/639 and close to the northern boundary of the area of the available land. The tengraph map provided by the Grantee shows the same. The State’s documents contend and show, and it is not disputed by the Objector, that there are no Aboriginal communities on or in the vicinity of the land the subject of EL37/369, but there to be an Aboriginal site named “Bannockburn” registered under the Aboriginal Heritage Act 1972 (WA), the site type being artefact, part of which overlaps a portion of the southern leg of the area claimed as EL37/369 but being outside the available land.
At the Objector’s request, and with the consent of all parties, the time for compliance by the Objector with the said directions was extended to the 16th October 2001. It was directed that if the Grantee wished to reply it should do so by the 10th October 2001. The Listing Hearing was re-listed for 19th October.
On the 10th October 2001, the Grantee lodged its Statement of Contentions in the form of a statement of submissions by and evidence of John Edward Jordan, the Grantee’s Mining Property Manager. At the time of provision of the Grantee’s contentions there had been no compliance by the Objector. Those contentions allege, without subsequent challenge, that the ground available to the Grantee under the proposed tenement, (if granted), will be less than 4 square kilometres. They annex tengraph maps (attachment “A” and “B”), the accuracy of which is also unchallenged, depicting the overlapped and adjoining mining tenements and applications and the location of the available land. Examination of the current mining tenements marked on the tengraph map provided by the State agree with the Grantee’s identification and location of the available land and the adjoining tenements and applications. A letter accompanying the Grantee’s Statement of contentions state that they are to be read in conjunction with the State’s contentions.
The Objector failed to comply with the said directions on or before the 16th October, and, on the 18th October, by his representative, the Goldfields Land Council (GLC), advised that his contentions had been prepared but he did not wish to submit them without a supporting Affidavit. The contentions however were received by the Tribunal late on the 18th October 2001. At a Listing Hearing on the 19th October, the Objector’s representative advised of its inability to contact the Objector and stated that it would provide an Affidavit on the following Tuesday. A direction was given that it be provided on or before the 26th October and that any other party wishing to reply to the Objector’s Contentions should do so on or before the 2nd November. Subsequently on the 19th October the Objector provided his Affidavit sworn that day.
The Objector’s statement of contentions makes clear that he was then aware of the content of the Grantee’s statement lodged 10th October 2001. He complains that the Grantee has not taken the Koara People on a heritage survey of the Mt. Margaret Project area, which, he says, includes the tenement “the subject of the objection”, and that the Koara People have not had the opportunity to identify sites within, and were not allowed to participate in, the heritage survey of the tenement area and so have not had any opportunity to identify sites. He contends that it is unlikely that the tenement will not interfere with areas which are of significance to the Koara People. The contentions allege that the Objector “has indicated”, on behalf of those People, that he hunts kangaroos near Mount Fouracre, near which there are significant water resources, at least six times a year, and camps at a camping site near the Mount which, he says, is close to the tenement area “according to information provided by the Grantee Party and the State” (an apparent reference to the maps provided by these parties). He contends that any ground disturbing activity on the tenement will impact on the Koara use and enjoyment of the camping ground site at Mount Fouracre, its nearby water resources and their hunting grounds, will interfere with their capacity to hunt, camp and access the land and will disrupt their social activities of hunting and camping. He contends that the claim of the State and the Grantee that the grant is not likely to relevantly interfere with areas or sites of significance is unjustified as the Koara People have not been allowed to participate in a heritage survey of the tenement area. He contends that “S237, in particular S237(a) and (b)”, applies.
The tengraph map provided by the State shows Mount Fouracre to be to the east of the proposed tenement EL37/639 as claimed, and almost directly east of the available land. At a Listing Hearing on the 8th November, the State advised that the peak of Mount Fouracre was shown under the printed lettering of the words “Mount Fouracre” on the tengraph map provided by it by small print reading “LEV36T1”, and that a radius of approximately 1 kilometre around that peak is registered with the Department of Indigenous Affairs. That information indicates the peak of the Mt. to be approximately 3 kilometres from the nearest point of the eastern boundary of the land available for exploration under the proposed exploration licence 37/639.
Set out hereunder is the content of the Affidavit of Richard Evans, the Objector, sworn on the 19th October, in support of the contentions:-
‘On the 19th day of October 2001, I, Richard Evans of Gwalia Street Leonora, in the State of Western Australia, Self Employed say as follows:
1. I am one of the Applicants for the Determination of Native Title WC 95/1that has been lodged with the National Native Title Tribunal.
2. 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.
3. I am a spokesperson for the Koara people and I have native title rights and interest in the country where the government wants to grant exploration licence; E37/639 (“the said licence”).
4. The Koara 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.
5. While all the country for which the Koara people have native title rights and interest 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.
6. The Koara people have, and continue to utilise the area for hunting. At least six times a year, I and other Koara people go hunting kangaroos around Mt. Fouracre, including the area subject of the exploration licence. There are also significant water sources, lake areas in the Mt. Margaret Project Area, of which E37/639 forms a part. There is a significant camping site around Mt. Fouracre, which I and other Koara people visit and stay at when we go hunting.
7. Koara country, including this tenement, is of particular significance to me because the Koara people have lived and travelled through there for generations. The Koara people are concerned that any damage to the area may be detrimental to the Koara people, both physically and spiritually.
8. 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 Koara 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 Koara people seek to avoid any damage or interference to these sites of spiritual and cultural significance.
9. The Koara 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.
10. To my knowledge, Barry Machin, conducted a heritage survey of the Mt. Margaret Project Area in the second half of last year, with other Native Title Parties. This survey included the tenement, the subject of this objection by the Koara people. The Koara people were consulted about the survey by the Grantee Party, but were not taken out by the Grantee Party on the survey.
11. I ask that the Grantee Party undertake a proper survey of this tenement with the Koara people to ensure our Heritage, our sites, our land and culture is protected. The Koara people are willing to help the Grantee Party in a Heritage protection survey before the Grantee Party commences their operation.’
The Grantees contentions in reply to the contentions and Affidavit of the Objector, were lodged on 1st November 2001, and, with reference to the Objector’s claim that the Koara People were not permitted to participate in the heritage survey, contain the statement, “It would be incorrect to conclude from these statements that the absence of the Koara People from a survey was attributable to the Grantee Party. In fact the Koara were invited to participate in the survey of the Mount Margaret Project no less than three times but declined”. At the Listing Hearing on the 8th November, the Objector’s representative (GLC) was asked whether this statement caused any concern or warranted any reply. The reply was that the representative’s understanding was that non-participation by the Koara in the surveys previously conducted by the Grantee Party was due mainly to lack of agreement regarding survey costs. The records reveal that at the first Preliminary Hearing of this matter, attended by all parties or their representatives, the Grantee advised that it had carried out anthropological and archaeological surveys throughout the area of the proposed tenement, had recorded the sites located and believed there to be no sites of significance in the area. It also advised the Tribunal and other parties present, apparently without objection, that the Koara people had declined to take part in the surveys. It advised it would provide the survey material to the Objector for consideration. There is no complaint or suggestion that that was not done. The Grantee’s contentions in reply claim an absence of evidence on the part of the Objector to sustain its contentions in respect of S237(a), (b) and (c). It points to the evidence of the Objector that the Koara people were consulted about the survey of the area and contends that they were “free to survey the area at their will but should not need to do so if they have cultural connection”.
At the Listing Hearing on the 8th November, all parties agreed that the objection be determined on the papers. Having read and taken into account the documents and other material lodged with or provided to the Tribunal, I am satisfied that the issues for determination can be adequately determined in the absence of the parties. At that hearing the State and the Objector accepted that the provisions of Section 57 (2d) and (2e) of the Mining Act 1978 (WA) and the express exclusion of the current mining tenements over land the subject of EL37/639 as claimed reduced the area of land that could be the subject of the grant to something less than 4 square kilometres. There is no argument as to the Grantee’s submissions as to its location. It is not in contention that such land is intersected by the Old Agnew Road and a transmission line and includes Reserves 9699 and 3731 or that the aerial landing ground is in close vicinity to the northern boundary of that available land. It is common ground that the Grantee conducted heritage surveys of the areas the subject Mt. Margaret Nickel Project, which included the land the subject of the claimed EL37/369 and that the Koara people were consulted in respect thereof and it would appear that, subject to agreement as to survey costs, could have taken part in such surveys. It would appear from the Objector’s contentions and Affidavit that he and or the Koara people have been and are under the impression that, in the case of an expedited procedure objection, the Grantee has an obligation to negotiate, arrange and/or possibly pay for a heritage survey in which the People must participate. If that is the case, he and or they are under a misapprehension (see Section 31(1) of the Act.) I find that the non-participation of the Koara people in such surveys was the result of their own decision. It has however little, if any, relevance to the issues for determination.
I turn now to the provisions of S237 and the evidence. Section 237 of the Act defines what is a future act which attracts the expedited procedure. It is not necessary to set out that section. It raises, but more specifically, the issues identified in Paragraph 7(a), (b) and (c) of the Objection.
In respect of S237(a) French J said in Derrick Smith v The State of Western Australia (2001) FCA 19 at page 12 paragraphs 26 and 27:
‘The criterion of direct interference in Par(a) may be thought of more fruitfully as functional than as definitional. That is to say, 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. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple casual analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgement that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself 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 the community or social activities are outside the scope of the kind of interference contemplated by the section. The evaluation is contextual. 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. It is that kind of assessment which the applicant in this case regards as impermissible. In my opinion, however, it reflects a commonsense approach to the question posed for the Tribunal which was reflected in the approach which it took in this case. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.’
S237(a)
The Objector’s evidence relevant to S237(a) is found in paragraph 6 of his affidavit in which he deposes to hunting kangaroo with other Koara People at least six times a year “around Mt. Fouracre including the area subject of the exploration licence”. He also speaks of camping at a site “around Mt. Fouracre” and of water resources “near Mt Fouracre”. It is not in dispute that Mt. Fouracre is not part of the proposed exploration licence either as claimed or as available for exploration and there is no evidence to indicate how the grant will effect the camping site or water resources. The extent of the area used for hunting is not identified nor is it suggested that hunting is limited to the area around Mt. Fouracre. Indeed the evidence leads to a strong implication that hunting on the proposed tenement is neither frequent nor regular. Mt. Fouracre is itself situated on an exploration licence and, it seems, on or in very close proximity to a prospecting licence. There are applications for mining tenements to its north, to the west between it and the proposed tenement, to its south and to its east. Those to the north, east and south are within the boundaries of current exploration licence 37/295. There are a considerable number of current mining tenements commencing approximately three and a half kilometres to the east of the Mt. Fouracre peak separated from the eastern boundary of EL37/295 by less than a half kilometre. It is also relevant that the available land is traversed by the Old Agnew Road and a telegraph transmission line, has an aerial landing ground close to its northern boundary which is common with the southern boundary of current mining lease 37/386, is also traversed by Stock Route Reserve 9699 and is the subject of reserve 3731 (a Resting Place for Travellers and Stock). Save for the eastern boundary of the available land, it is itself bounded on the north, west and south by current mining tenements, as is the remainder of EL37/369 as claimed. There are numerous current mining tenements adjacent to those current tenements to the south, west and north. The tengraph map provided by the State makes clear that the proposed tenement is well within an area that is the subject of numerous current mining tenements and applications for mining tenements. The inference from the evidence is that the available land is in an area the subject of considerable mining activity and subject to both road and stock movement. I draw the inference from the above matters that there is already substantial disturbance to and interference with the area the subject of the proposed tenement and the land surrounding it and, as to mining activities, including the area around Mt. Fouracre where the Koara People continue to hunt and camp, apparently without relevant interference. Having regard to the relatively small area of the available land and the nature of the various causes of disturbance and interference, it is reasonable to assume that it is unlikely to be a particularly productive area for hunting. It is also of relevance that the people’s hunting activities in the area can be described as occasional. On the evidence I am satisfied that the grant of the tenement is not likely to interfere directly with the carrying on of hunting in the area around Mt. Fouracre, and in particular on or in the vicinity of the available land. There is no evidence of any other relevant community or social activity.S237(b)
There is no evidence of the presence on the proposed tenement of any site or area of particular significance in accordance with their traditions to the Native Title holders. Were there relevant sites, it would reasonably follow from the people’s hunting on and in the vicinity of the land, the subject of the proposed tenement over the years that they would be aware of at least some thereof. There is however, no attempt in the Objector’s contentions or affidavit to identify any such site or area. This leads inevitably to the conclusion that there are no sites or areas on or in the vicinity of those lands of particular significance (in the sense of “special” or “out of the ordinary” significance) in accordance with their traditions. That the whole of the Koara country is said by the Objector to be of particular significance because of the people’s connection therewith over the generations does not provide evidence of an area or site of relevant particular significance in accordance with the traditions of the Koara People for the purpose of S237(b). The directions issued on the 3rd September 2001 required the Objector’s contentions to include a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area. That no such information was contained in the contentions supports the inference that there are no relevant areas or sites on or in the vicinity of the land the subject of the proposed grant. I find on the material before me that the act is not likely to interfere with areas or sites of particular significance in accordance with their traditions within the meaning of S237(c) to the holders of native title in relation to that land.S237(c)
As to the provisions of S237(c) I am unable to find on the evidence that the grant of the tenement is likely to involve major disturbance to any land or waters concerned or create rights the exercise of which is likely to involve major disturbance to any land or waters concerned. I have come to that conclusion after taking into account the size of the proposed tenement, its location in relation to current mining and applications for mining tenements, the reserves and road which impinge on it, the activities which, it is reasonable to assume, exist in connection with each thereof and the evidence as to the Objectors’ hunting thereon which suggests strongly that it is not used regularly
or frequently for that purpose. I also take into account the evidence that there are no aboriginal communities on it or in its vicinity and that of the Objector which makes clear that, subject to a heritage protection survey, the Koara People are not opposed to exploration activity on the proposed tenement. I also take into account the statutory and other restrictions on the mining activities which may be carried out thereon as revealed by the State’s contentions and documents and the provisions of the Aboriginal Heritage Act 1972. I give the words “major disturbance” as used in S237(c) the meaning given to it in Dann v Western Australia (1997) 74 FCR 391, i.e. its ordinary meaning, the degree of likely disturbance being considered in all of its relevant circumstances from the viewpoint of the Australian community generally, including, importantly, its effect on the local (if any) communities.
DETERMINATION
The determination of the Tribunal is that the grant of exploration licence EL37/369 is an act which attracts the expedited procedure.
Hon EM Franklyn QC
Deputy President
5 December 2001
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