Western Australia/C. N. Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group
[2001] NNTTA 52
•25 June 2001
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/C. N. Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, [2001] NNTTA 52 (25 June 2001)
Application No: WO00/92
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
The State of Western Australia (government party)
- and –
C. N. Hardie (grantee party)
- and -
Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group (native title party)
REASONS FOR DETERMINATION
Tribunal: Ms Jennifer Stuckey-Clarke, Member
Place: Sydney
Date: 25 June 2001
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection application – proposed grant found to attract expedited procedure
Legislation: Native Title Act 1993 (Cth)
Background
By notice dated 12 November,1999 issued pursuant to s.29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the State”) advised its intention to grant exploration licence 04/1093 (‘the exploration licence”) to C.N.Hardie (“the grantee”). The exploration licence was over an area of 140.43 square kilometres located 101 kilometres north westerly of Fitzroy Crossing, in the Shire of Derby-West Kimberley (lat. 17o 29 minutes, long. 124o minutes). The notice explained that the grant of an Exploration Licence authorises the applicant to explore for minerals for a term of five 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 17 November 1999.
On 16 March, 2000, Banjo Wurrunmurra and Rita Dann on behalf of the Bunuba Native Title Claim group (“the objectors”) lodged an objection (by way of Form 4 made pursuant to the Native Title Tribunal Regulations 1993) with the Tribunal to the statement in the s.29 notice that the grant of the exploration licence attracted the expedited procedure.
In para 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 objectors provided in para 7, the following statement:
“The proposed act is not an act that attracts the expedited procedure because:
(a) It will directly interfere with the carrying-on of the community or social activities of the native title holders in that:
Access to and use of the land and waters in this matter without the permission of and under the supervision of the relevant native titled holders will cause serious social and religious impacts to those individuals and their communal responsibilities to other members of their community to care for and maintain the land and waters the subject of these applications in accordance with their own traditions and customs.
(b) The community consists of the native title holders primarily resident at Yuwa, Wamali and Junjuwa communities and Leopold Downs homestead.
(c) There are a number of Areas and/or Sites of particular and major significance in accordance with the native title holders’ traditions and customs that would be disturbed by ground disturbing activities.
(d) The grant of an exploration licence allows major disturbance to occur and also creates rights whose exercise will involve major disturbance to the land and waters concerned.
(e) Exploration licences granted under the Mining Act, 1978 (WA) allow the following activities to take place:
(i)Access to the land for a period of 5 years without the permission of the native title holders. In prescribed circumstances, the Minister may extend the term of a licence by periods totalling a maximum of 4 years and in exceptional circumstances further period of one year (s.61 Mining Act).
(ii)To generally explore and carry on operations necessary for such exploration activities including digging pits, trenches and holes, sinking bores and tunnels (s.66 Mining Act).
This means that the following types of ground disturbing activities are also allowed: sampling, drilling, trenching, costeaning, bulk sampling, the construction of roads, airstrips, helipads, drilling pads and waste ponds.
(iii)To excavate, extract and remove prescribed amounts of earth, soil, rock, stone, fluid or mineral bearing substances or greater amounts as the Minister may approve (s.66 Mining Act).
The licence holder can remove 1,000 tonnes per exploration licence and with the Minister’s consent extract and remove much larger amounts (Reg. 20 Mining Regulations 1981 (WA)).
The Minister’s approval of amounts over 1,000 tonnes is not subject to the approval of the native title holders.
(iv)To take and divert (subject to Rights to Water and Irrigation Act 1914 (WA)) water from any natural spring, lake, pool or stream on the subject land (s.66 Mining Act).
(v)The grant of the exploration licence creates a right of priority for the grant of a mining lease or general purpose lease (s.67 Mining Act).
Para 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 type of evidence the applicant will produce to the NNTT to support the
objection is:
(a)Anthropological Documents.
(b)Mining Techniques Document.
(c)Documents outlining the impact on carrying-on of the community or social activities.”
On 20 August, 1999, the objectors’ Combined Application for Determination of Native Title WC99/19 was registered by the Tribunal in relation to the area of land subject to the s.29 notices concerning the proposed grant of the exploration licence (‘WC99/19’). This Application was registered as a combined application by order of the Federal Court made 18 August, 1999 and the objection application was accepted by the Tribunal on 12 April 2000 and was registered on 20 August 2000.
[6] The State, grantee and native title party were notified of the objections and a preliminary conference was held on 1 June 2000. The State lodged with the Tribunal a statement of its contentions and a copy of the documents upon it proposed to rely on 26 July 2000. The native title party lodged its contentions on 31 July 2000 and affidavit evidence on 18 August 2000.
The native title party lodged substituted statement of contentions on 26 October 2000.
I was appointed as the Member to conduct the inquiry on 16 March 2001. The Tribunal prepared a detailed topographical map of the area the subject of the tenement(“the Tribunal map”) which was forwarded to the parties on 23 March 2001 informing the parties that if they wished, they should make submissions in relation to the Tribunal map by 28 March 2001. No submissions were received by the Tribunal.
The Evidence
The documents produced by the State make clear that there is one registered site on the proposed tenement. They disclose that the site named “Oscar Ranges” is on the Interim Register and is designated unreliable. It is a repository/cache site, access to it is closed and there are no gender restrictions in respect of it.
The documents produced by the State are relied upon by the objectors and with respect to the Register of Sites, the objectors say at para 23 of the substituted contentions:
“ A search of the Register of Sites held by the Aboriginal Affairs Department conducted by the Government party reveals that there is one registered site in the exploration licence application area, and the native title holders are aware of many other unregistered sites within the application area, and that native title holders are aware of many other unregistered sites within the application area.[Birrell & Ors v. W.A. 99/71 NNTT 25 September 2000].”
The documents also reveal that there is no Aboriginal Community in the vicinity of the proposed tenement. They also reveal that the area of land over which the proposed tenement is to operate is comprised of pastoral lease 398/833, 3114/682, 3114/692 and 3114/748; Reserve 12474; unallocated Crown land and a road.
The State’s documentary evidence does not otherwise address the question of interference with community life within 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 the land. However, these matters are addressed in the State’s contentions. To the extent that the documentary evidence could be said to deal with interference with community life or disturbance to land it is only by way of inference to be drawn from fact, that if granted, there will be an exploration licence over the land with all the rights attached thereto.
Although the grantee led no evidence, it is taken to be common ground that the Grantee will be authorised to extract and remove up to 1,000 tonnes of material and that further amounts may be extracted with the Minister’s approval: s.66 Mining Act and see objectors’ substituted statement of contentions, paras 6-9.
The State has not taken issue with the evidence adduced by the objectors. That does not mean however that that evidence is to be uncritically accepted as sufficient to make out the objections. It is a matter of relevance and weight.
The objectors rely upon the affidavit of Rita Dann sworn 18 August, 2000. She deposed as follows:
“I, Rita Dann, pensioner, of Kamulinanga Reserve, Derby, in the State of Western Australia say on affirmation:
1.I am the registered native title claimant for the area where the proposed exploration licence EO4/1093 is. The claim number if WAG 6133 of 1998.
2.I have seen the map where the exploration applicant wants to work and it has been explained to me that the applicant wants to explore in this country.
3.I come from this country from my mother and my mother’s father, my jabi. I’ve spent a lot of time on that country. I’m still going, looking after my country. My mummy – my ngarranyi – been tell ‘em ‘bout me to look after my place, my jabi country.
LIKELIHOOD TO INTEFERE WITH SITES OR AREAS OF PARTICULAR SIGNIFICANCE
4.There are sacred sites and special places around this exploration area, nearby. They are very important places. There’s Ngarranggani (Dreamtime) places like Baralama. Two dogs been come long way from Malan (near Lake Gregory) across Kanbariwari plain and across this area and finish there at Baralama. Women are not allowed to go and see that place Baralama. I can’t say the full story for that place, And Yhilimbirri. “E got woman story and Wunggurru (rainbow serpent) story at Yhilimbirri. At Windjana Gorge there’s a Wunggurru and a willi wili – a juwula – rock from Ngarranggani and man’s face inside the cave called Langurnurru. At Manjawila there’s a Wunggurru keeping the soak water there. You can see that place all green every time. At Kuranggnari ‘e got big mob or rai, little spirits. Bullen too ‘e got rai. They’re living there now looking after those two places. We’ve told mining mob before not to go near those places. Otherwise people might get very sick because ‘e got them rai there. That willi willi at Windjana Gorge if people touch ‘im ‘e cause a lot of rain or wind. That’s why people should look after ‘im.
5.At Manjawila, old people used to live at Manjawila and hide away from policemen. My father in law told me that Pigeon’s (Jandamarra) uncle was hiding at the soak – the winjarugu – there. Pigeon was working as a police tracker and went there to pick up his uncle and take him to Lillimilura police station. Pigeon tied him up under a tree. His uncle didn’t like being tied like a dog and he tempted Pigeon to shoot the policeman. Pigeon was a police tracker and then he got tempted by his uncle and that’s why he shot the police and let the prisoners go.
LIKELIHOOD TO DIRECTLY INTERFERE WITH THE CARRYING ON OF COMMUNITY OR SOCIAL ACTIVITIES
6.We go on this area camping with kids and hunting for turkey and to get sugarbag and bush medicine like conkerberry bush and spinifex – ngirri – wax. It’s a good place for doing these things. We take kids to teach them about this country and about doing these things. We call that spinifex wax barrala. We boil barrala and drink it or sniff it in or heat it with a lighter and sniff it. It’s good cold medicine. It’s like Vics (vapour rub). It’s good for kids. I collected some wax a couple of weeks back and I got it at home. People use to use it to make spears for hunting.
7.There’s a lot of tourists coming to Windjana Gorge and Tunnel Creek near this area, and some Aboriginal tourist business taking them there. The Aboriginal tourist mob should be able to tell the mining mob to stop and ask the traditional owners where to go.
LIKELIHOOD OF MAJOR DISTURBANCE TO LAND OR WATERS IN THE AREA
8.We want to go along with the mining mob to see where they are going to drill and all that. When they drill we want them to put the dirt over it if they don’t find nothing. We like to see them doing that, not leave the earth open.
9.Mining mob don’t always talk with traditional owners. Sometimes they bugger up country and don’t clean ‘im up. We fee no good if mining mob don’t talk first to the traditional owners. We like to go along with them. We are the traditional owners. It’s our jabi country, our mummy country, that’s our mother nature.”
Relevant Legal Principles
Before I proceed to consider the parties’ contentions, I will outline the legal principles which I consider relevant to the issues for determination.
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 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.
In Smith v. Western Australia [2001] FCA 19 (unreported), French J. provided guidance on the construction and interpretation of s.237 at para 23:
“The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a) (b) and (c) of s.237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. The protection is not to be narrowly construed. The term “likely” in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such judgment would potentially permit, without benefit of any negotiation, quite considerable risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction of forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep within the realm of the expedited procedure. Consistently with the objects of the Act, the word “likely” requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s.237.”
In particular, his Honour said in relation to paragraph (a) of s.237 at paras 26-27:
“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 a Tribunal does not require precise or semantically correct cause and effect analysis in every case. Simple causal 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 judgment 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 on community or social activities. That is to say trivial impacts or impacts which are not relevant for carrying of the community or social activities are outside the scope of a kind of interference contemplated by the section…….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.”
The phrase “interfere directly with the carrying on of …community or social activities” in s.237 as amended is “limited to interference with the physical aspects of the carrying on of community or social activities of native title holders”: see Derrick Smith & Ors V. South Coast Metals Pty Ltd WO99/511, The Hon E M Franklyn, QC, 25 June, 2000. That issue was not dealt with on appeal: see [2001] FCA 19 at para 29 per French J. The Deputy President says at pages 26-29:
“Paragraph 20.39 of the Native Title Amendment Bill 1997 Explanatory Memorandum …….says:
‘When an act attracts the expedited procedure:20.39Existing section 237 sets out the circumstances when an act attracts the expedited procedure. If native title parties object to the expedited procedure for a particular future act, the arbitral body must determine whether the act meets the requirements set out in section 237. Some changes are being made to section 237 as set out below (these were proposed in the 1996 amendments).
-The first change addresses a Federal Court decision (Ward v Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 and if it is not likely to (rather than ‘does not’) interfere directly with the physical aspects of community life. If there is evidence that the act will interfere with native title claimants’ physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply. [Schedule 1, item 42]”…….
In my view the Explanatory Memorandum is properly available for use in the interpretation of s.237 as it is capable of assisting in interpreting and indeed confirming its meaning …….
It makes clear that the Tribunal must undertake a predictive assessment and look at what ‘is likely to occur’. In my opinion the use of the Explanatory Memorandum is authorised by s.15AB(1), (2)(e) and (3) of the Acts Interpretation Act 1901 (Cwth), by the purposive approach to the interpretation of statutes and pursuant to the ‘mischief rule’ of interpretation ……(although) the conclusion of Carr J in Ward that the direct interference referred to in s.2237(a) is not limited to physical interference, the Explanatory Memorandum (makes it) clear that s.237(a) is concerned with and limited to interference with the physical aspects of the carrying on of community or social activities of the native title holders. This is consistent with the finding of the majority of the Full Court of the Federal Court in W.A. v Ward & Ors (2000) 170 ALR 159 that the common law only recognises native title rights and interests which involve physical use and enjoyment of the land.”
The legislative history of the amendment of s.237 is set out by French J. in the judgment on appeal [2001] FCA 19 at paras 21-22. Initially, para (a) was to be amended to read:
“The act is not likely to interfere directly with the physical aspects of the community life.”
However, as French J. points out at para 22:
“22.In the legislative process this definition was further amended into the form which it has under the present Act. This variation of the proposed amendments was reflected in the Native Title Amendment Act 1997 [No. 2] which was passed as the Native Title Amendment Act 1998. In a Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1997 [No.2] it was stated:
“This amendment replaces item 42 in the Bill which deals with one of the criteria for determining whether the future act (such as the grant of an exploration lease or licence) attracts the expedited procedure. The effect of replacement paragraph 237(a) is that the procedure can only apply if the grant of the lease or licence is not likely to interfere directly with the carrying on of the community or social activities of native title holders.””
In my view, since the Supplementary Memorandum does not contradict the purport of the Explanatory Memorandum, Parliament must be taken to have intended by the final amendment to limit s.237(a) to 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. As Deputy President Franklyn points out, this construction is consistent with the view of the majority of the Full Court of the Federal Court in W.A. v Ward & Ors.
So far as paragraph (b) of s.237 is concerned the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holder in accordance with tradition. As Carr J said in Cheinmora v. Striker (1996) 142 ALR 21 at 34-35:
“A relevant site is one which is of special or more than ordinary significance to native title holders. It is not enough that that the site simply be of significance to the native title holders. That would leave the word “particular” with no work to do. It would also involve a notional transposition of that word from being in front of “significance” (as it appears in the sub-section) to immediately after it. If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word “particular”…… a relevant site is one that is of special or more than ordinary significance to native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the native title party claims are of particular significance, the Tribunal will have to make its own factual assessment of that matter.”
In Western Australia/Winnie McHenry WO98/125, The Hon E M Franklyn QC, 28 July 1999, the Deputy President said that the particularity of the significance of areas or sites must be “capable of identification” and the significance to the holders of native titles must also be established on the evidence.
Of course, the Tribunal takes a commonsense approach to the evidence and questions of onus of proof are not determinative. However, as Carr J said in Ward v Western Australia (1996) 69 FCR 208 at 217:
“Where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the [Administrative] Tribunal applies its commonsense approach to the evidence.”
Thus, in respect of s.237(b), absent verified documentary evidence, evidence of particular significance will be peculiarly within the knowledge of the objectors.
Further, Carr J said in Ward v Western Australia at 230:
“in inquiring and determining whether there was likely to be any interference with areas or sites of particular significance…..the effectiveness of the Aboriginal Heritage Act, how it was administered in practice, the likelihood that the grantee parties would have to consult with the native title parties or order to comply with the Aboriginal Heritage Act and in those circumstances the likelihood that they would do so. All of these matters are part of a fact finding exercise to determine whether there was likely to be any interference with areas or sites of particular significance.”
However, in the absence of any relevant evidence in relation to these matters, it will not be assumed against the grantee that he will breach the licence conditions or act in breach of the relevant legislation. As Deputy President Franklyn said in Derrick Smith at p.39:
“In the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the grantee would act in breach of the conditions imposed on the licence or in defiance of the various statutes and regulations which apply in respect of and would restrict any such statute or rights. Nor should it be assumed that those empowered by any statute or regulation to exercise discretion as to the manner or extent of the exercise of all or any such rights would not act properly within the boundaries of the discretion. The presumption of regularity must prevail in the absence of evidence to the contrary.”
So far as paragraph (c) of s.237 is concerned, the requirement of “major disturbance” was considered by the Full Court of the Federal Court in Dann v. Western Australia (1997) 74 FCR 391. The Full Court held that the words should be construed in their ordinary meaning as understood by the whole Australian community. The three Judges however added slightly different glosses upon the construction of the words. Justice Wilcox said at 395:
“The Court was informed in the course of argument that some Tribunal members had held that an envisaged disturbance to land or waters should be regarded as a “major disturbance” if it was so categorised by one of the parties. If that view had been taken, it is clearly wrong. It is for the Tribunal to determine whether a particular future act will involve a disturbance to land or waters and if so , whether the disturbance answers the description of being a “major disturbance”. Submissions from the parties may assist the Tribunal in reaching conclusions on theses matters, but assertion is not enough; the Tribunal must decide.
The word “major” is an adjective of degree. In determining whether a given envisaged disturbance to land or waters amounts to a major disturbance, the Tribunal must make a value judgment. I agree with my colleagues that, in doing this, the Tribunal must give the term “major disturbance” its ordinary English meaning. It must consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a “major disturbance” even if it would be unimportant to non-Aboriginals.”
However, Justice Tamberlin said at 401-2:
“It is correct to say that the interpretation of the words “major disturbance” is a question of ordinary statutory construction which involves the ascertainment of the meaning and effect of those words. However, when applying the words, as interpreted, to the facts of any particular case it is necessary to take into account the views of all members of the community without excluding any particular section of the general community. There is no justification discernible in the language of s.237(c) for excluding the views of any section of the community. Equally it would be wrong to suggest that the views of any particular section of the community must in all instances prevail or be determinative. The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or waters can be properly characterised as “major”.
The appropriate approach is to take into account the concerns of the Aboriginal community including matters such as community life, customs, traditions, and cultural concerns of the native title holders. It would be an unduly restrictive approach to refuse to take account of these considerations …
In view of the above, the proper conclusion is that it is necessary to take into account the views and concerns of native title holders, but the importance and weight to be assigned to these matters will vary in each particular case according to the circumstances and evidence adduced.”
Justice R D Nicholson agreed with Justice Tamberlin, saying at 413:
“… the expression “major disturbance” should be understood as an ordinary English term and be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is nothing in the section to preclude Aboriginal people raising under this paragraph matters which they consider touch on the issue of major disturbance of the land or waters. In so far as those matters repeat matters raised to support their case under pars (a) or (b), there would be no practicality in that occurring where those matters have failed to support a positive finding in their favour in terms of either pars (a) or (b).”
Reasoning
Section 237(a) Interference with Community or Social Activities
The State contended that the granting of the proposed tenement would not be likely to interfere directly with the carrying on of the community or social activities of the objectors in relation to the land because:
“4. The Government party contends that the grant 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 subject of Reserve 12474 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 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 63 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, ie. reporting discoveries of minerals, making safe any holes,, pits, trenches, etc, and preventing damage to property and livestock.
(f)in relation to pastoral leasehold included within the proposed tenement section 20(5) of the Mining Act provides that, unless the written consent of the occupier is obtained or unless the warden by order otherwise directs (other than in relation to land referred to in section 20(5)(c), the holder of a mining tenement is not entitled to prospect, fossick on, explore, mine on or under or otherwise interfere with any crown land that is:
(i)for the time being under crop, or which is situated within 100 metres thereof;
(ii)used as or situated within 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(iii)situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
(iv)the site of or situated within 100 metres of any cemetery or burial ground;
(v)land the subject of a pastoral lease within the meaning of the Land Act which is the site of, or 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.”
(para 4 of the State’s contentions.)
The objectors in their substituted statement of contentions set out their reasons for asserting the opposite proposition at paras 14-21,paras 14-16 of which are set out in full below:
“14.The objector contends that the act is likely to interfere with the carrying on of the community and social activities of the native title claimants and therefore is not an act attracting the expedited procedure (section 237(a) NTA)).
15.Members of the community of native title claimants occupy Fairfield Pastoral Station and Wamalu Community on Leopold Down Pastoral Station and exercise their native title rights and traditional customs within the Application Area.
16.The common law recognises native title rights and interests involve physical use and enjoyment of the land: WA v. Ward (2000) 170 ALR 159. The exercise of rights conferred by the exploration licence is likely to physically interfere with the community or social activities of the native title claimants including:
(i)The gathering of bush tucker and food: Affidavit of Rita Dann para 6;
(ii)The gathering of traditional bush medicines: Rita Dann para 6;
(iii)The teaching of traditional laws and customs to children: Rita Dann para 6;
(iv)Religious activities: Rita Dann para 4;
(v)The collection of natural resources for making tools: Rita Dann para 6;
(vi)Quiet enjoyment and camping grounds: Rita Dann para 6.
These activities occur over some or all of the Application Area.
As Deputy President Franklyn said in Derrick Smith (at page 40):
“ Having assessed, on the evidence (including a consideration of the nature of the grant and the various statutes and regulations which may affect the exercise of the rights created), the degree of likelihood of the interference or disturbance from the grantee’s activities, the task of the Tribunal is then to determine whether that degree of interference and/or disturbance is not likely to interfere as specified in s. 237(a) or (b) or to involve major disturbance to as specified in paragraph (c).”
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 evidence adduced by the objectors does not contradict the State’s evidence that there is no Aboriginal community in the vicinity of the proposed tenement. However, at para 15 of the objectors’ substituted contentions it is asserted:
“Members of the community of native title Claimants occupy Fairfield Pastoral Station and Wamalu Community on Leopold Downs Pastoral Station and exercise their native title rights and traditional customs within the Application Area.”
From the Tribunal map, it is clear that Fairfield is about 2 kilometres from the southern end of the proposed tenement but the precise location of the two pastoral stations referred to is not clearly demonstrated by any evidence.
Rita Dann in her affidavit does not depose to where she lives although she swears that she comes from the country on “the map where the exploration applicant wants to work ”(para 2) and “I come from this country from my mother and my mother’s father, my jabi.”(para 3). She also says “I’ve spent a lot(sic) time on that country. I’m still going, looking after my country”(para 3).
In my view, there is insufficient evidence adduced by the objectors to contradict the State’s evidence that there is no Aboriginal community in the vicinity of the proposed tenement.
Rita Dann in para 2 refers to a “map where the exploration applicant wants to work” but that map is not annexed to the affidavit or specified in any manner at all. It could not be the Tribunal map, which was produced after the affidavit was sworn. In the State’s documents there are at least two maps which may be “the map”. This lack of specificity is most unfortunate for the Tribunal is placed in no position to judge whether the deponent has been referred accurately to the actual land comprising the proposed tenement. Thus, the deponent’s evidence is seriously flawed and this could easily have been remedied by the adoption by her legal advisers of the usual practice of annexing the map which she was shown or otherwise referring to it so as to identify it with accuracy.
In this instance, even if I were prepared to assume that “the map” referred to is the Department of Minerals and Energy map in the State’s documents of the area covered by the exploration licence Rita Dann’s affidavit is simply not sufficiently specific to allow me to determine whether or not there are social or community activities conducted on the area of the proposed tenement which are likely to be directly interfered with. Indeed, “the sacred sites and special places” referred to in para 4 of Rita Dann’s affidavit are said to be “around this exploration area, nearby”, a wholly ambiguous description, and the Tribunal map shows that Windjana Gorge and Tunnel Creek are not within the proposed tenement (see paras 4 and 7). The location of Manjawila, referred to in paras 4 & 5, is not specified as being on the proposed tenement and there is no other evidence before me that it is. There is a similar lack of specificity in respect of the other places referred to in those paragraphs.
The objectors’ evidence is general and non-specific to the effect that “this area” is used for hunting and food-gathering, for camping and activities involving the teaching of traditional law and custom to children.(see para 6). No evidence is given of the frequency of these activities or any reference given to the specific sites at which these activities are conducted or the importance of the area of the proposed tenement in this regard.
In the circumstances, I am of the view that there is insufficient specific and relevant evidence adduced by the objectors 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.
Section 237(b) Interference with Areas or Sites of Particular Significance
The State contended that the granting of the proposed tenement would not be likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the objectors for the following reasons:
“5.The Government party contends that the grant of the proposed tenement is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the objectors in relation to the land, of the following reasons:
(a)the Aboriginal Heritage Act 1972 applies to the land, and provides protection for Aboriginal areas or sites as defined in section 5 of the Act, of particular significance on the land;
(b)section 18 of the Aboriginal Heritage Act provides that the grantee party must have the consent of the Minister for Aboriginal Affairs before using the land for any purpose which would result in a breach of section 17 of the Act. Section 176 makes it an offence inter alia to excavate, destroy or damage or conceal or in any way alter any Aboriginal site or any object on or under an Aboriginal site;
(c)the grant of the proposed tenement will include an endorsement that the grantee party’s attention be drawn to the provisions of the Aboriginal Heritage Act.”
(para 5 of the State’s contentions.)
The objectors contended that the Aboriginal Heritage Act was inadequate to protect any sites of particular significance (at paras 22-34):
“22.The objector contends that the act is likely to interfere with areas or sites of particular significance and is therefore not an act attracting the expedited procedure (section 237(b) NTA) and that unregulated but otherwise lawful mineral exploration activity in these areas is likely to interfere with areas and sites of particular significance in accordance with the objector’s traditions.
23.A search of the Register of Sites held by the Aboriginal Affairs Department conducted by the Government party reveals that here is 1 registered site in the exploration licence application area, and the native title holders are aware of many other unregistered sites within the application area (Rita Dann para 4). It is common knowledge that not all Aboriginal sites are registered (Birrell & Ors v W.A. WO 99/71 NNTT 25 September 2000).
24.The sacred sites and special places revealed in evidence of Rita Dann are highly significant to the native title claimants. They represent central bases and principles of the law and culture unique to the native title claimants and are sites of particular significance that have special or more than ordinary significance.
25.The only obligation imposed on the grantee by the Aboriginal Heritage Act 1972 – 1980) (WA) (“Heritage Act”) is an obligation not to destroy any site about which the grantee could reasonably be expected to know. The defence under section 62 would be available to the grantee with respect to many of the sites and areas of particular significance to the native title holders which are within the proposed exploration licence. However, the grantee is not legally obliged to undertake such consultations.
26.In the Aboriginal Land Inquiry Report (“the Seaman Report”) by Paul Seaman QC (as he was then) it was found that:
‘The Aboriginal Heritage Act has always given absolute control over Aboriginal sites to the Minister of the day. It proved ineffective to protect the Barramundi Gap and other sacred sites at what is now the Argyle Diamond Mine and sacred sites at Noonkanbah and on the Harding River.
Following the 1980 amendments the Aboriginal Heritage Act has a simple operation in relation to sites. The Government of the day can decide in the interests of the broader community what Aboriginal sites should be destroyed or damaged, no matter how sacred or important or special their significance to Aboriginal people may be. Aboriginal people have no right to be heard on the topic, although private property owners may appeal to the Supreme Court if the Minister will not authorise a disturbance.” (at p.53, paras 8.15 to 8.16)’
27.The availability of Ministerial override pursuant to an application under section 18 of the Heritage Act, which allows for the destruction of such sites, renders the protection offered by the Heritage Act nugatory: pursuant to section 18, a person acting lawfully may apply successfully for Ministerial approval of the destruction of sites. This is inconsistent with the requirements of section 237(b) of the NTA.
28.The Western Australian Supreme Court has found that the Heritage Act does not confer on Aboriginal people any private rights in respect of areas and sites of particular significance: see Western Australia v Bropho (1991) 5 WAR 75 per Anderson J at p. 86. The grant of the act would adversely affect the many areas or sites of significance on the land and waters concerned. Since these areas or sites (whether registered under the Heritage Act or not) are regarded as being the embodiment and extension of relatives within the cultural domain, the disturbance of such places has a deleterious effect upon the community’s health and well-being.
29.Furthermore, since such sites and areas are not isolated points in the landscape but rather components of a greater whole interconnected through ceremonial practices and cosmographic beliefs, the interdependency of persons and places is put at risk by the disturbance which would from the exploration activities.
30.It is extremely difficult to avoid just one site without indirectly affecting another. The entire ground is felt to be infused with the essences of the original creative figures in the landscape and an injury to one is experienced as an injury to all.
31.Older people express deep concern that burial sites and other significant ceremonial depositories in the lands, unknown to the currently oldest generation, will be disturbed by the activities of exploration with a subsequent deleterious effect upon the community and the lands as a whole.
32.In the alternative, the fact that exploration companies have in the past damaged sites in the tenement area, despite the operation of the Aboriginal Heritage Act, is sufficient evidence to rebut any presumption of regularity. This fact also establishes that the risk of damage to sites by future exploration is not remote or fanciful.
33.In Re Irruntyju-Papulankutja Deputy President the Hon P. Seaman stated (at 6) that:
….the effect which the grant is likely to have is not to be judged by [the grantees’ intention] but by the power of the government party to control the activities of a grantee party by existing legislation, conditions of grant and regulatory process and upon the basis that grantee parties will act lawfully.
34.The objectors contend that existing legislation inadequately controls or protects sites of particular significance from the grantee party’s exercise of rights conferred by an exploration licence.”
There is only one site on the Interim Register of Sites on the proposed tenement as disclosed by the State’s documents. That site does not appear to be referred to in the objectors’ evidence and no reference is made of its particular significance to the objectors.
I have already referred to the lack of specific geographical detail in the objectors’ evidence and the uncertainty as to whether the sites referred to therein are actually located on the proposed tenement. For this reason, the evidence does not disclose any basis for holding that there are areas or sites of particular significance on the proposed tenement.
Consequently, the issue of likelihood or otherwise of interference with any such area or site does not arise for determination. However, I express my view that the presumption of regularity is not rebutted by any evidence led by objectors. Evidence that sites have been damaged by other entities in the past in an area which may, or may not, be coincident with the proposed tenement does not rebut the presumption that the present grantee, in exercising the rights created by the grant, would not act in breach of its licence conditions or act in defiance of the various statutes and regulations to which the grant is subject.
SECTION 237(C) MAJOR DISTURBANCE TO LAND OR WATERS
The State addressed this issue at para 6 of its contentions with a bare assertion of the negative proposition. The objectors addressed the issue at paras 35-44 with the Kimberley Land Council’s apparently standard form contentions in relation to this issue.
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 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 substantial area of the tenement and the fact that there is no Aboriginal community on the proposed tenement, and applying the construction of “major disturbance” approved by the Full Federal Court in Dann v. Western Australia, 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 Exploration Licence 04/1093
is an act which attracts the expedited procedure.
J. E. Stuckey-Clarke
Member
25 June 2001
0