Walley v Western Australia

Case [2002] NNTTA 24

Reported at (2002) 169 FLR 437

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WO01/179); Robin Boddington and Others on behalf of the Wajarri Elders (WO01/180)/Western Australia/Giralia Resources NL, [2002] NNTTA 24 (8 March 2002)

Application Nos:       WO01/179 & WO01/180

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WO01/179)
and
Robin Boddington and Others on behalf of the Wajarri Elders (WO01/180) (Native Title Parties)

- and -

The State of Western Australia (Government Party)

- and –

Giralia Resources NL (Grantee Party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:        Hon C J Sumner, Deputy President

Place:             Perth

Date:              8 March 2002

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – predictive assessment to be made about likely interference or disturbance – intention of grantee party relevant – no onus of proof – meaning of interfere directly – whether both physical and non-physical interference covered in s 237(a) – proposed remedial work relevant to major disturbance – nature of an exploration licence – likely interference with the carrying on of community or social activities – interference with sites of particular significance unlikely – major disturbance to land unlikely – act which does not attract the expedited procedure.

Legislation:  Native Title Act 1993 (Cth), ss 151, 237

Aboriginal Heritage Act 1972 (WA), s 16, 17, 18, 62

Mining Act 1978 (WA), ss 8, 20(5), 23, 24, 24A, 25, 26, 40-56A, 56C-70, 75(7),

Mining Regulations 1981, Regulations 20, 23AB

Cases:  Smith & Ors v CRA Exploration Pty Ltd & Others (1996) 133 FLR 251

Ward v Western Australia (1996) 69 FCR 208

Cheinmora v Striker (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Western Australia v Smith (2000) 163 FLR 32, NNTT WO99/511, Hon E M Franklyn QC, 23 June 2000

Smith v Western Australia (2001) 108 FCR 442

Little v Western Australia [2001] FCA 1706

Irruntyju-Papulankutja (1996) 1 AILR 222, NNTT WO95/7, Hon P Seaman QC, 6 October 1995

Ben Ward & Ors (Miriuwung-Gajerrong People)/Western Australia/Australian United Gold NL, NNTT WO95/11, Hon C J Sumner, 18 September 1996

Jack Dann & Ors/Western Australia/GPA Distributors, NNTT WO95/19, The Hon C J Sumner, 10 June 1997

Western Australia/Winnie McHenry (Noongar People), NNTT WO98/125, Hon E M Franklyn QC, 28 July 1999

Leone Velickovic/Western Australia/Royce William Allen, NNTT WO00/184, Hon E M Franklyn QC, 10 November 2000

Leonne Velickovic/Western Australia/Glen Allen Sinclair, NNTT WO00/299, Hon E M Franklyn QC, 31 January 2001

Violet Drury and Others (Nanda People)/Western Australia/Girali Resources NL, NNTT WO00/93, Hon E M Franklyn QC, 18 May 2001

Maureen Young (Ngadju People)/Western Australia/South Coast Metals Pty Ltd, NNTT WO00/402, Mr John Sosso, 7 June 2001

Western Australia/Roebuck Resources…

Continue reading Walley v Western Australia

Sign in free to access the full text

Details
AGLC
Walley v Western Australia [2002] NNTTA 24
Case
[2002] NNTTA 24
Decision Date

CaseChat Overview and Summary

In Walley v Western Australia, the applicants, who held native title rights over a defined area, sought to object to the proposed grant of an exploration licence over land that they claimed to be of cultural significance. The Federal Court of Australia was tasked with determining whether the proposed exploration licence would likely result in major disturbance to the land or interfere directly with the carrying on of community or social activities of the native title holders. The applicants argued that the proposed exploration activities would interfere with their ability to conduct cultural practices and that the exploration licence would lead to major disturbance due to its proximity to culturally significant sites.

The court examined whether the exploration licence would directly interfere with the native title holders' ability to conduct their cultural practices and whether it would result in major disturbance to the land. The court noted that while the proposed tenement was close to culturally significant sites, none of these sites were actually on the tenement itself. Furthermore, the court held that the Aboriginal Heritage Act and associated procedures would likely prevent interference with sites of particular significance. The court also found that the exploration licence would not likely result in major disturbance to the land, as the activities permitted under the licence would be limited and subject to compliance with the Aboriginal Heritage Act.

The court concluded that the proposed exploration licence did not attract the expedited procedure for objecting to a future act under the Native Title Act. The court held that there was no onus of proof on the applicants to establish that the proposed exploration activities would interfere with their cultural practices or result in major disturbance to the land. The court also held that the meaning of "interfere directly" in section 237(a) of the Native Title Act encompassed both physical and non-physical interference. However, the court found that the proposed exploration activities were not likely to interfere directly with the applicants' cultural practices or result in major disturbance to the land.

The court dismissed the applicants' objection to the proposed grant of the exploration licence. The court held that the exploration licence did not attract the expedited procedure for objecting to a future act under the Native Title Act, as it was not likely to result in major disturbance to the land or interfere directly with the carrying on of community or social activities of the native title holders. The court also held that the applicants had not established that the proposed exploration activities would interfere with their cultural practices or result in major disturbance to the land.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The native title party’s evidence: The evidence of Mr Hamlett is that the proposed tenement is close to Wilgie Mia, the Weld Ranges and in an area of special importance to Wajarri and other Aboriginal people. It was also next to Jungar Pool which is an important place for Wajarri People. Spirit people (wudajis and mundungu) live in the hills of the Weld Ranges. The special importance of Wilgie Mia and Weld Ranges to the native title party was endorsed by Ike Simpson. There is a red kangaroo (marlu) dreaming story associated with them. There are Corroboree grounds in and around Weld Ranges and ochre from Wilgie Mia is still used all over the country for painting in corroborees. Mr Mongoo supports the other deponents in relation to the importance of Wilgie Mia and the Weld Ranges. He also says that Jungar Pool is an important area for Wajarris where a bimarda (water serpent) lives. Affidavit of Nicholas Green: Nicholas Paul Green is Director of Research at the Yamatji Land and Sea Council and has responsibility for anthropological research within the Wajarri Elders native title claim area. On the question of site protection he says that it is the general practice of the native title party to instruct the YLSC to lodge objections to the expedited procedure and then withdraw them if a grantee party agrees to fund and facilitate an Aboriginal heritage survey of the tenement area. He says that the native title party is concerned that grievous damage to traditional country will be caused and can only be prevented by a site survey. They believe that a site can be interfered with by exploration activities even if not located within a tenement area, but in close proximity to it. Mr Green’s opinion is that the more significant a site, the greater precautions must be taken to avoid disturbing it. Mr Green further deposed that: My findings in relation to this evidence are that the Weld Ranges is a significant area to the native title party in accordance with its traditions and that there are sites of particular significance within them including Wilgie Mia. Jungar Pool may also be such a site. However, none of these sites are on the area of the tenement. Weld Ranges are 5-10 kilometres to the north-west of the edge of the tenement and Jungar Pool is some 2 kilometres to the east. There is no specific evidence of sites of particular significance on the tenement itself. In these circumstances, I am of the view that the presumption of regularity applies and that the Aboriginal Heritage Act and procedures associated with its compliance described above will mean that there is not likely to be interference with sites of particular significance to the native title party. The grantee party is aware of its obligation under the Aboriginal Heritage Act, aware that there are special areas or sites near the tenement and that there may be sites on the tenement itself. It will need to take care to ensure that it does not breach the Aboriginal Heritage Act. Mr Green says that he has been told that the grantee party is not willing to be involved in a heritage survey. This evidence is hearsay but has not been formally contested by the grantee party. Nevertheless, I am aware from the preliminary proceedings that negotiations on the conduct of a heritage survey did not result in agreement. My understanding is that one reason for this was that the costs of a survey which were to be borne by the grantee party were unacceptable to it. I did not understand the grantee party to say that it refused to conduct a survey but that it objected to the cost. I do not consider that this breakdown in negotiations is sufficient to overturn the presumption of regularity and lead to a conclusion that there is a likelihood that the Aboriginal Heritage Act will not be complied with. There is no statutory or legal obligation on a grantee party to fund or facilitate an Aboriginal heritage survey and no adverse inference can be drawn in this case from the fact that no agreement has been reached on this issue (Kevin Peter Walley & Ors (Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, Mr John Sosso, 17 August 2001 at [27]). In other cases, the lack of evidence of the grantee party’s intentions with respect to the protection of sites may be taken into account (such as where the tenement is over an area rich in sites) (Wilma Freddie, WO99/882).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Sections 56C to 70 of the Mining Act deal with exploration licences and confer on the licensee the rights and obligation specified therein. Of special relevance are the following:‘Grant of exploration licence57. (1) Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.’...‘Term of exploration licence61. (1) An exploration licence shall, subject to this Act, remain in force for a period of 5 years from and including the date on which it was granted, and shall then expire.(2) Notwithstanding subsection (1) the Minister may extend the term of an exploration licence — (a) in prescribed circumstances by — (i) a period of one or 2 years; and(ii) one further period of one or 2 years;and(b) in exceptional circumstances by a further period or periods of one year,as to the whole or any part of the land the subject of that exploration licence on such terms and conditions as the Minister thinks fit.’ The maximum size of an exploration licence is 70 blocks (approximately 196 square kilometres but may be greater the further north the licence is situated). The area of the licence is reduced over time as the exploration progresses (s 65). An applicant for an exploration licence must provide to the Department of Mineral and Petroleum Resources a proposed exploration program outlining proposed activities and methods including a statement of the applicant’s technical expertise and financial resources. Activities carried out under exploration licences range from literature searches; aeromagnetic surveying and mapping; regional geological mapping, electrical geophysical programs; rock chip sampling and assaying; and the drilling of identified targets. The explorer progresses from one to the other depending on the prospectivity indicated by earlier investigations. If earlier findings are not satisfactory, the title may be dropped and subsequent ground disturbing stages such as drilling not utilised. The exploration licence the subject of these proceedings is to be issued mainly over pastoral lease land, which is defined as Crown land by s 8 of the Mining Act. Section 20(5) of the Mining Act deals with certain restrictions which are imposed on mining on Crown land as follows:‘(5) Notwithstanding that any Crown land to which this subsection refers may be marked out as or be included in a mining tenement, a mining tenement or Miner's Right does not entitle the holder thereof to prospect or fossick on, explore, or mine on or under, or otherwise interfere with, any Crown land that is — (a) for the time being under crop, or which is situated within 100 metres thereof;(b) used as or situated within 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;(c) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;(d) the site of or situated within 100 metres of any cemetery or burial ground;(e) land the subject of a pastoral lease within the meaning of the Land Administration Act 1987 which is the site of, or is situated within 400 metres of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of that pastoral lease,without the written consent of the occupier, unless the warden in relation to any land other than land referred to in paragraph (c) by order otherwise directs, but nothing in this subsection prevents such a holder from passing and repassing over any Crown land that is situated within — (f) 100 metres of any Crown land that is — (i) for the time being under crop;(ii) used as a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;(iii) in actual occupation and on which a house or other substantial building is erected; or(iv) the site of any cemetery or burial ground;or(g)400 metres of any Crown land that is the site of any water works, race, dam, well or bore,in order to gain access to other land (not being Crown land referred to in paragraph (f) or (g)), for the purpose of prospecting or fossicking on, exploring, mining on or under, or marking out that other land but a warden shall not make an order under this subsection unless he is satisfied that the land is bona fide required for mining purposes and he is satisfied that compensation in accordance with section 123 for all loss or damage suffered or likely to be suffered by an owner or occupier of the land has been agreed upon or otherwise determined, or is assessed and settled in accordance with this Act by the warden.’