Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth
[2000] NNTTA 325
•25 September 2000
| NATIONAL NATIVE TITLE TRIBUNAL |
Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth, [2000] NNTTA 325 (25 September 2000)
| Application No: WO99/574 |
| IN THE MATTER of the Native Title Act 1993 (Cth) |
| - and - |
| IN THE MATTER of an inquiry into an expedited procedure objection application |
| Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning (native title party) |
| - and - |
| The State of Western Australia (Government party) |
| - and - |
| John Charles Booth (grantee party) |
| REASONS FOR A DETERMINATION |
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 25 September 2000
Catchwords: Native Title – future act – expedited procedure objection application – objection upheld – observations as to address for service on grantee.
Legislation:Native Title Act 1993 (Cth) s 237
BACKGROUND:
In July 1999 the State of Western Australia (the State) issued notice under s 29 of The Native Title Act 1993 (the Act) that it proposed to grant to John Charles BOOTH (the grantee) Prospecting Licence 80/1357 (the proposed tenement) comprising 14.99 hectares, situate 24 kilometres east of Halls Creek.
The Notice provided a notification date of 14 July 1999 and contained a statement that the State considered the grant to be an act attracting the expedited procedure. On 15 November 1999 the native title party (the objectors) lodged an objection to the inclusion of that statement in the Notice, denying that the grant attracted the expedited procedure as it would directly interfere with the community life of the native title holders, cause disturbance to areas and sites of particular and major significance in accordance with their traditions and would allow major disturbance and create rights, the exercise of which would involve major disturbance to the land and waters concerned. As is apparent, the objection is phrased in terms of s 237 of the Act as it was prior to its amendment in September 1999. For the purposes of this determination however I apply the provisions of the Act as amended.
The objectors are the registered native title claimants under application WC99/22 which, on 24 September 1999 was combined by order of the Federal Court with other registered claims as application WC99/40.
The documentary evidence provided by the State reveals the proposed tenement to be over unallocated Crown Land situate on the Canning Stock Route and including a portion of the Elvire River, that there are no Aboriginal communities within its vicinity and no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (the AHA) on it. The State’s contentions assert that there are no Aboriginal communities situate on the proposed tenement and draw attention to the provisions of s 46 of The Mining Act 1978 (WA) (the Mining Act) which imposes statutory conditions on the proposed tenement directed to rendering safe any disturbance to the surface of the land which is likely to endanger the safety of any person or animal and to prevent damage to trees and property. The contentions also direct attention to the provisions of the AHA and set out additional conditions to which the proposed tenement will be subject, which conditions provide for restoration and rehabilitation of disturbances to the land caused by the operation of the grant and prohibit the use of mechanised equipment without written approval from the Mines Department. The State’s contentions, quite irrelevantly on the evidence it provides as to the underlying land tenure, include submissions relevant to a grant proposed over Pastoral Lease land. I treat those submissions as irrelevant for the purposes of my determination.
The Objectors contentions allege (inter alia) the proposed tenement to be within the Canning Stock Route which passes through the Elvire Pastoral Lease and that that lease is vested in the Lamboo Gunian Aboriginal Corporation. It alleges that many members of the community of native title claimants with responsibilities for “this area” live on the Pastoral Lease and in the nearby town of Halls Creek, said to be within 10 kms of the proposed tenement. That distance is at odds with the distance shown in the s 29 Notice of 24 kms. The contentions claim that activities carried out by the native title claimants over the area of the proposed tenement “include hunting, fishing, gathering, foraging and conducting social, cultural, spiritual, ceremonial and economic activities”. No particulars of any such activity are provided. It is also contended that activities are conducted away from the proposed tenement, which activities will be significantly affected by the exercise of the rights conferred by the licence. It is further contended that the existing social structure and cultural use of the landscape will be diminished by the mining operations, that there are a number of unregistered Aboriginal sites within the proposed tenement area (of which no details are provided) and that the grant of the licence is likely to involve major disturbance. In support of their contentions the objectors rely upon the affidavit of Edna Skeen of the Linga Community, one of the registered native title parties and an objector. Such affidavit was sworn at Halls Creek on 16 May 2000 and its contents are set out hereunder.
“…
I am a registered native title claimant for the area where the proposed prospecting licence is to be issued. I am able to speak for this country.
I was born at Forrest River Mission on October 26, 1935. My father brought us back to his country when I was about 7 years old.
My father was born at the junction of the Halls creek and Elvire river. His brother was born closer the license area at a place called twelve mile also on the Elvire river.
I am now living on Linga community with my husband, David Skeen. This is an aboriginal owned community. My family belongs to this station area long before the Whiteman (gardiya) came. My ancestors used to walk this country around Koongie Elvire leases. These old people looked for tucker around this country. This place is famous for the gold rush when the white man first came to this area.
I know the area where the government wants to issue the prospectors licence No. P80/1357 because Lawrence Emery from the Kimberley Land Council office in Halls Creek showed me a map where this mob want to go. It has been explained to me what they want to do I am worried about a few things about it there.
MAJOR DISTURBANCE TO ANY LAND OR WATERS IN THE AREA
I know what PMA has done with that big hole in the ground at Brockman, biggest hole – too far down. They have even knocked down that whole hill when they said they would not. There are old people buried around that mine area and the company has not looked after the place. I am worried that other people will do the same thing.
This license is right on the river and I don’t want it to be disturbed as it is very important for us for living water as well as for dreaming stories about the Pelican and Galeru (Water Snake).
People have to ask the Traditional Owners before they start disturbing the country.
INTERFERENCE WITH SITES OR AREAS OF PARTICULAR SIGNIFICANCE
My ancestors were born along the Elvire river and some of them are buried along there in caves.
10.This area is where a lot of the old people used to walk through to go for ceremony on Moola Bulla and also to Flora Valley. There are corroboree places all along and many places where people camped.
11.The Pelican dreaming story travels through this country. The Pelican picked up a fish at Lake Gregory and dropped it making a water hole. This is right where this prospector wants to go. This dreaming goes right up to Caroline Pool along the Elvire river.
12.Galeru (water snake) is also in all the water holes along the river and we have to protect them, otherwise bad things can happen to people.
13.We keep some places secret and don’t tell white people. There are Ngarrangani (secret) places that might get hurt with any mining activity. I have to look after and protect these country for my ancestors and to pass on to my children.
Interference with the carrying on of the community or social activities
14.I live on my traditional land at Linga Community. This community is close to the license area. I and my family spend a lot of time in the area and don’t want a lot of mining rubbish mucking up the river and the land around there.
15.We can go down to this country to get kangaroo and goanna. Also to pick up bush food. Other traditional people also come to these places from all over. Maybe they will stop us from hunting and we may not be able to visit my ancestors country.
16.It’s important to pass on culture. Take the children and grandchildren to go hunting for goanna. Teaching things like looking for sugar bag; yams; small potatoes (Boonga); and Joonda (bush onion); and other bush foods. I can do this all the time right now.
17.If strangers come they can get lost. You need to get the old people. This way you can set up camp – never get lost. People can get sick or lost, or they can die. The community would get upset – worried for some sacred places. Where gardiya (white person) will go.
18.Koongle mob run cattle through here and the mining mob might scare them away or much up their water supply. Aboriginal people make money out of running cattle.
19.This is my story and I believe that all of the statements made in this affidavit are true.”
Save for her evidence as to the Pelican creating the waterhole and the evidence of hunting kangaroo, goanna and gathering food, M/s Skeen’s evidence is not specific to the land or waters the subject of the proposed tenement, but refers generally to the land of which it forms part and the river in its vicinity. It is not apparent who are the “Koongle mob” and whether their running of cattle in the area is a community or social activity of the native title holders.
It is significant that the definition of ‘land’ under the Mining Act (s 8) includes water. In my opinion, on the evidence, having regard to the wording of s 237(a) and in the absence of evidence to the contrary, it cannot be said that mining operations on the proposed tenement authorised by the Mining Act, even taking into account the conditions, statutory and otherwise, which would apply, are not likely to directly interfere with the carrying on of the community and social life of the traditional native title holders who use the land for hunting and gathering food and rely on the waters of the river for “living water”. Such reliance is clearly related to the water within the area of the mining tenement and both upstream and downstream of it and the communal activities include hunting on and gathering of food from the land the subject of the proposed tenement. Further, in the absence of evidence to the contrary or cross-examination of Edna Skeen revealing her evidence to be either unacceptable or not relevant to the authorised mining activities, and having regard to the location of the proposed tenement and that the map relied on by the State shows it to include portion of the Elvire river, it cannot be said that the exercise of the rights conferred by the grant is not likely to interfere with waterholes along the river within and without the boundaries of the proposed tenement which, she testifies, must be protected “otherwise bad things happen to people”. In my opinion, that evidence is sufficient to establish that such waterholes, at least one of which is said to be within the proposed tenement, are sites or areas of relevant particular significance. It matters not that they are not registered under the AHA. The witness testifies that “we keep some places secret and don’t tell white people” and it is common knowledge that all sites are not so registered.
Having regard to the uncontested evidence of the dreaming, the connection with the land, the reliance on the river for “living water”, there is also, in my opinion, a real chance that the exercise of the rights conferred by the grant of the proposed tenement could interfere with the river so as to adversely affect it as “living water”. It consequently cannot be said on the evidence available that such activity is not likely to involve major disturbance of the water and possibly the land concerned. As I held in Derrick Smith on behalf of the Gnaala Karla Booja people – v – the State of Western Australia & South Coast Metals in WO99/511, delivered on 23 June 2000, if there is a real chance that an act will produce a certain consequence, it cannot be said that it is not likely to produce that consequence.
The records of this matter show that the grantee has taken no part in the proceedings, has not complied with directions made by the Tribunal and has had no contact with it in relation to this matter. Efforts by the Tribunal staff to contact him have been unsuccessful. The State advises that it also has made several attempts to locate him but without success. The native title party advises that it has received no reply from him to any correspondence sent by it to him. The documents reveal that his application for the grant showed his address to be “C/- Post Office, Halls Creek WA 6770”. The records show that the grantee has not attended any preliminary or listing hearing or the substantive hearing of the objection application, has not responded to correspondence from the Tribunal and to have made no contact in any way with it. Since December 1999 the Tribunal has made frequent efforts to contact him without success. In addition to correspondence sent to him at Halls Creek giving notice of preliminary and listing hearings and of the substantive hearing, the Tribunal staff sought to locate him through other persons with whom enquiries revealed he had mining interests. A Mrs Kathryn Stewart of Salter’s Point, a joint applicant with him for another tenement, informed the Tribunal that the grantee’s representative in that matter was one Peter Leech with a Post Office, Halls Creek address. Mr Leech was contacted in December 1999. That contact resulted in advice that, when in Halls Creek, the grantee resided at the home of a M/s Barbara Edwards at Hall Creek and that a Mr Werner Vanags of PO Box 47, Halls Creek, was the grantee’s representative. The Tribunal contacted Mr Vanags by letter. On 30 December 1999, Tribunal staff spoke by telephone with each of Mr Vanags, Mr Leech and M/s Edwards, each of whom advised they did not represent the grantee. M/s Edwards, however, stated that messages could be left for him by telephoning her on a given telephone number. Subsequent telephone calls to that number were unanswered. Copies of the contentions, submissions and documents relied on by the State and the objectors were sent to the grantee by the Tribunal, C/- the Post Office, Halls Creek, address of Mr Leech, as were copies of the directions made. The Tribunal is informed by the State that it has also been in contact with the Mining Registrar at Kununurra in an endeavour to locate the grantee but also without success.
It is the obligation of the Tribunal under s 32 of the Act to determine the objection and, pursuant to s 109, to pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. It also has an obligation to ensure that every party is given a reasonable opportunity to present his or her case and to inspect any relevant documents and to make submissions (s 142). I am satisfied that the grantee has been given that opportunity and has elected to take no part in the proceedings. I add that I am of the view that there is an obligation of the State to provide to the Tribunal an address for the service of documents and correspondence upon the proposed grantees of tenements. Such a grantee is a stranger to the Tribunal but is known to the State as the applicant for the relevant tenement. He has no obligation to provide a contact address to the Tribunal nor to contact the Tribunal. He may, but is not obliged to, take any part in any objection proceedings, but, if the objection fails, in the normal course he will be granted the tenement without any obligation to negotiate with the native title party. Leaving aside any argument that, for the purposes of expedited procedure objections, a grantee is not a “party” within the meaning of s 142 (no such argument having been advanced), he is entitled to the benefit of s 142 and so to be served with all relevant documents and to present his case that the proposed grant is an act which attracts the expedited procedure. Consequently, as in this case, such proceedings can be, and often are, delayed and involve unnecessary expense when it is left to the Tribunal to endeavour to locate a grantee to give him the opportunity of access to relevant documents and of being heard. In the present case, no address for service was provided, the Tribunal being left to act on that shown on the grantee’s application for the proposed tenement, (ie C/- Post Office, Halls Creek) a copy of which was provided by the State as a document relevant to the inquiry. There seems no reason why the State cannot have a grantee formally identify an address for service to be notified to the Tribunal when it proposes a grant said to attract the expedited procedure.
DETERMINATION
It is the Tribunal’s determination that the grant of Prospecting Licence P80/1357 is not an act attracting the expedited procedure.
Hon EM Franklyn QC
Deputy President
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