Western Australia/Glen Griffin Venn Money/Jack Britten & Ors

[2001] NNTTA 53

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, [2001] NNTTA 53 (25 June 2001)

APPLICATION NO:           WO99/800

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

- and -

IN THE MATTER of an Inquiry into Objection to Expedited Procedure Application

The State of Western Australia (government party)

- and -

Glen Griffin Venn Money (grantee party)

- and -

Jack Britten & Ors  (WC94/11) (native title party)

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 not to attract expedited procedure

Application No:  WO99/800

Background

1. By notice dated 17 September 1999 issued pursuant to s.29 of the Native Title Act (“the Act”) the State advised its intention to grant five exploration licences, 80/2337-41, to Glenn Griffin Venn Money (“the grantee”).  The five exploration licences respectively cover the following areas:

   (i)80/2337, 219 sq km, 141 km north-easterly of Halls Creek.

   (ii)80/2338, 228.68 km, 130 km north-easterly of Halls Creek

   (iii)80/2339, 228.76 km, 147 km north-easterly of Halls Creek

   (iv)80/2340, 176.49 km, 153 km south of Kununurra

   (v)80/2341, 186.36 km, 146 km south of Kununurra.

All of the exploration licences are in the Shire of Halls Creek. The notice explained that the grant of the exploration licences 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 22 September 1999.

1. On 13 December 1999, Jack Britten, Hector Chunda, Shirley Drill, Bernard Strecth and Phyllis Gallagher (“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 grants of the exploration licences attracted the expedited procedure.

1. 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 set forth those reasons in para 7:

“(a)They will directly interfere with the community life 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 title 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.

The community consists of the native title holders primarily resident at Warmun.

(b)There are a number of Areas and/or Sites of particular and major significance in accordance with the native title holders(sic) traditions and customs that would be disturbed by ground disturbing activities.

(c)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.

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.  This is subject to extension at the Ministers(sic) discretion for further periods of one year.  See s.66 generally.

(ii)To generally explore and carry on operations necessary for such exploration activities including digging pits, trenches and holes, sinking bores and tunnels.

This means that the following type 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.

The licence holder can remove 1,000 tonnes per exploration licence and with the Minister’s consent extract and remove much larger amounts. (Regulation 20).

(iv)To take and divert (subject to Rights in Water and Irrigation Act) water from any natural spring, lake, pool, stream on the subject land.

(v)The grant of the exploration licence creates a right to have priority for the grant of a mining lease or general purpose lease (s.67).”

1. 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:

   “(a)       Anthropological Documents.

   (b)Mining Techniques Document.

   (c)Document outlining the Social Impact of Exploration Activities on

   Community Life.
   There is no other relevant information provided at this time.”

1. On 21 December 1994, the objectors filed an Application for Determination of Native Title WC94/11 encompassing the land subject to the s.29 notice. This Application was held to comply with the requirements of s. 190 of the Act on 27 March 1995 and the objection application was accepted by the Tribunal on 10 February 2000. The area of land encompassed by the proposed tenements is 1039.28 square kilometres.

1. The parties were notified of the objection on 10 February 2000 and a preliminary
   conference convened on 16 February 2000  was adjourned to 15 March 2000 in order that negotiations might proceed between the parties. At the preliminary conference,  directions were made with compliance by the State ordered on 10 May 2000, by the objectors on 17 May 2000 and the grantee by 24 May 2000. A listing hearing was set down for 31 May 2000.  The State lodged its documentary evidence on 5 May 2000 and its statement of contentions on 9 May 2000.  Mr Ken Street of Western Tenement Services representing the grantee lodged the grantee’s statement of contentions on 30 May 2000. The Kimberley Land Council acting for the objectors lodged their statement of contentions on 31 May 2000.

1. At the listing hearing on 31 May 2000 the objectors advised the Tribunal that this case had been transferred to the Derby office of the Kimberley Land Council from the Kununurra office and they had not received a copy of the directions nor the State's submissions. The matter was adjourned to 16 June 2000 before Deputy President  Sumner and the relevant documents faxed to the Derby office.

1. At the next hearing on 16 June 2000 Peter Hwang from the Kimberley Land Council said that he had had difficulties obtaining affidavits but would be forwarding one to the Tribunal that afternoon.

1. The affidavit of Shirley Drill sworn on 18 July 2000 was provided to the Tribunal on 25 July 2000 by the objectors and they requested that the matter be heard  “‘on the papers”.  On 27 July, 2000 I was appointed as the member of the Tribunal to conduct the inquiry.

1. The matter was listed for 11 August 2000.  At that hearing the question was put to the parties whether they would be raising the question of jurisdiction of the Tribunal to hear the matter.  The hearing was adjourned to allow the grantee’s representative to obtain instructions regarding this issue.

1. Directions were made  on 18 August 2000 that the State was to provide to the Tribunal, the objectors and the grantee a statement of contentions as to the effect of the decision of the Full Court of the Federal Court in Ward v The State of Western Australia (2000) 170 ALR 159. In particular, the State was to make submissions on whether the objection application should be dismissed or otherwise dealt with on the ground that native title in respect of the tenements had been extinguished and or that the Tribunal did not have jurisdiction to conduct the inquiry. On or before 6 October 2000 the objectors and the grantee were to provide any submissions in response to the State’s submissions. A directions hearing was to be held on 6 October 2000 unless agreement had been reached between the parties.

1. On 4 October 2000, the State advised the Tribunal that it had considered information before it on the question of extinguishment of native title and that it was not satisfied that native title had been extinguished in relation to the tenements the subject of exploration licences 80/2337, 80/2338, 80/2339, 80/2340 and 80/2341.

1. A directions hearing was convened on 6 October at which the objectors and grantee  advised the Tribunal that they were close to reaching agreement and were granted an adjournment to enable the finalisation of the agreement.

1. At the next directions hearing on 3 November 2000, Mr Hwang representing the objectors stated that he was still confident that agreement would be reached in the short term, but further instructions were required from the objectors.  I adjourned the matter to 24 November 2000, stating that the matter could not be adjourned indefinitely and that if no agreement had been reached, the matter would proceed to hearing on country as soon as possible which the objectors advised could not be until March 2001.

1. At the directions hearing on 24 November 2000, the grantee indicated that the parties were very close to reaching agreement,there being one clause of the draft agreement still unresolved.  Directions were nevertheless made for a proposed hearing on country for the week beginning 26 February 2001.  The objector was to provide to the Tribunal by 19 January 2001 with either further documentary evidence or details of witnesses to be called in the event of a hearing on country.

1. On 29 November 2000 the Tribunal received correspondence from Mr Street requesting the convening of s150 mediation conference in order that the expense of an ‘on country’ hearing may be avoided. From 31 January 2001 to 6 April 2001 the matter was the subject of mediation under s150 of the Act. No agreement resulted from the mediation conferences.

1. The Tribunal prepared a detailed topographical map of the area the subject of the tenements(“the Tribunal map”) which was forwarded to parties on 23 March 2001 informing parties that if they wished, they should make submissions in relation to the map by 28 March 2001. No submissions were received by the Tribunal.

1. Mr Street wrote to the Tribunal on 4 May 2001 that there was no likelihood of a negotiated settlement  and concluded by saying:

“Following the formal determination of the objections it is the grantees(sic) intention to request both the Tribunal and the State to convene formal mediation processes including assistance to:

(a)Identify traditional owners with standing in the community and NTA process.

(b)        Open and establish formal and effective channels of communication.

(c)       Identify the specific areas of concern to the community so resolution can be

addressed.”

1. Since none of the parties wished the matter to be heard on country and indeed all consistently opposed it for a variety of reasons, I proceeded to determine the matter ‘on the papers’ having satisfied myself that the provision of the Tribunal map equipped me with a sufficient evidentiary basis upon which to determine the matter ‘on the papers’.

The Evidence

1. The documents produced by the State reveal that in respect of each respective exploration licence, the following Aboriginal Communities are sited:

   (i)80/2337 – Lumuku Aboriginal Community, 2.8 km south of the tenement

   (ii)80/2338 – Kawarre Aboriginal Community is on the Southern boundary of the tenement and Lumuku Aboriginal Community, 1.5 km east of the tenement

   (iii)80/2339 – Kawanypunjai Aboriginal Community, 1.5 km north of the tenement

   (iv)80/2340 – Kawanypunjai Aboriginal Community, on north-east corner of tenement

   (v)80/2341 – Kawanypunjai Aboriginal Community, 7.3 km north-west of the tenement.

1. The State’s documents revealed that sites were recorded on the Interim Register of Sites for all tenements except E80/2341.

1. For E80/2337, there were four sites recorded. One is a reliable site, called ‘Jaliwamun’(site no. KO2257), which is ceremonial, mythological, painting and grinding site to which access is closed. Two other sites, “Wunabun’(KO1496) and ‘Osmond Valley 1’(KO1495) are open sites not designated as to type but apparently geographically extensive. The last site, 'Sandstone Ridge’, is a burial, painting and artefact site which is closed.

1. For E80/2338, there are 15 sites recorded. Four are reliable sites and six are closed access sites. Of those that are reliable, “Purnululu 17”(KO2366) and 19(KO2368) are artefact sites, “Jaliwamun”(KO2257) is a ceremonial, mythological, painting and grinding site and “Lumagul”(KO1499) is a mythological site. Of the nine unreliable sites, three are burial sites, namely “Ironstone Ridge Burial”(KO1398),”Sandstone Ridge”(KO1401) and “Turkey Creek”(KOO739).These also are apparently geographically extensive.

1. For E80/2339, there are two unreliable, closed sites, “Sandstone Ridge”(KO140l), a burial, painting and artefact site and “Moonlight Spring”(KO1089), a mythological site.

1. For 80/2340, there are two unreliable, open sites, “Moonlight Valley”(KO0740),a painting site, and “Osmond Yard”(KOO741),a painting and artefact site.

1. 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 30 of their contentions :

“A search of the Register of Sites held by the Aboriginal Affairs Department conducted by the Government party reveals that there are 4 registered sites in the exploration licence application area.  Furthermore, the native title claim group is aware of many other unregistered sites within the application area”

This is clearly inaccurate and I will not rely upon this paragraph of the contentions other than the last sentence.

1. The State’s documentary evidence also includes the conditions to be imposed on the proposed tenements which are set out at pages 5-11 of  its contentions.

1. The grantee led no sworn evidence.  However, on 30 May 2000, Mr Ken Street of       Western Tenement Services lodged “a letter of contention on behalf of Mr Glenn Money” which is unsigned but purports to be the “Grantees statement of contentions”(sic).  The statement is a somewhat confusing collation of legal submission and factual assertion.  For present purposes, I record relevant assertions of fact below:

   “5.The large majority of the area contained in the applications has been the subject of earlier exploration activity most recently by The Broken Hill Proprietory Limited (BHP) under Exploration Licences 80/1395 to 1400 granted between 1991 and 1993.  These licences were surrendered by BHP in 1997.

   6.The area of the application is the subject of recorded Aboriginal sites and it is acknowledged that additional sites may exist.”

2. 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’ statement of contentions, para 47.

1. The objectors rely upon the affidavit of Shirley Drill sworn 18 July 2000.  She deposes as follows:

   ”1.I am the registered native title claimant for the area where the proposed exploration licences are located.  The native title application is WC94/11 WAG6007/98.

   2.My country includes the old Bungle Bungle outstation.  The proper name for the outstation is Kawarre.  That’s my mother’s parent’s country.  My mother and uncle were born at the old Bungle Bungle outstation and grew up there.

3.I lived at the old Bungle Bungle outstation with my grandparents when I was a young girl.  Over fifteen years ago, my children and I went back there to live with my uncle and his wife.

4.I have seen the map where the mining mob wants to work and it has been explained to me that they want to explore in this country.  This country is next to Kawarre.  I know this country well and I am worried about the mining mob going in there without talking to our families.

LIKELIHOOD TO DIRECTLY INTERFERE WITH SITES OR AREAS OF PARTICULAR SIGNIFICANCE

5.       My mother’s mother’s mother was born and died at Kawarre.  They buried  

that old woman in the ranges just north of Kawarre where the mining mob wants to go.  We have other relatives buried in the Osmand Ranges and we don’t want the mining mob to interfere with our old people’s bones.

6.          In the place where the mining mob wants to explore we’ve also got really important areas.  These important Dreaming areas are all along the Osmand Ranges right across to the Ord River.  Some of the areas in these ranges come from Kaleruny (water snake) and strangers shouldn’t go there without our family or there could be trouble.  We have to introduce strangers to the country.          

7.We have recorded many of our places over the last 20 years with help from the Sites Department.  We’ve kept all the records so we can look after our country.  We have recorded more than 250 areas in and around Pumululu(sic) National Park and Conservation Reserve that are important to our families from the Dreaming.  Many of these areas are in the ranges north of the national park where the mining mob wants to explore.  I am one of the people who has to look after these areas and protect the country.

8.We have also recorded more than 250 archaeological sites in and around Pumululu National Park and Conservation Reserve.  Many of these are painting sites or places where the old people were camping before whitemen came to this country.  We have to look after these places too.

LIKELIHOOD TO DIRECTLY INTERFERE WTH THE CARRYING ON OF THE COMMUNITY OR SOCIAL ACTIVITIES

9.          Where the mining mob wants to explore is next to two of our communities, Kawarre and Date Palm.  My family and I often take our children out there to teach them about their country, the stories for country and bush tucker.  This is very important to us.  We do not want the mining mob blocking us from our country.    

10.When we take our children out bush, we get our tucker in that country from the rivers and creeks.  Bush turkey, fish, crocodiles, turtles, bush plum, bush tobacco, bush tomata and sugar bag all come from the river and creek country.  We don’t want the mining mob mucking up our creeks and rivers with bulldozers, trucks and motor vehicles so there’s no bush tucker.

LIKELIHOOD OF MAJOR DISTURBANCE TO ANY LAND OR WATERS IN THE AREA

11.Nearly all the creeks in this country run into Red Rock and Osmand Creek and then into the Ord River. It’s a big river and they all join up and the water comes off our country.  We don’t want to see the rivers buggered up by bulldozers and miners putting tracks in the wrong places for their vehicles.

12.We’ve seen what a mess the miners can make.  Not far from Date Palm there’s a hill that the miners knocked down twenty years ago and you can still see it there today.

13.    We’re just asking that people come to talk to us before they start going blind into our country”.

Relevant Legal Principles

1. Before I proceed to consider the parties’ contentions, I will outline the legal principles which I consider relevant to the issues for determination.

1. 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.

1. 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.”

1. 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.”

1. 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.”

1. 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.”

2. 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.”

1. 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.

1. 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.”

1. 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.

1. 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 .. Tribunal applies its commonsense approach to the evidence.”

2. Thus, in respect of s.237(b), absent verified documentary evidence, evidence of particular significance will be peculiarly within the knowledge of the objectors.

3. 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.”

1. In Ben Ward & Ors on behalf of the Miuruwung-Gajerrong People/State of Western Australia/CRA Exploration Pty Ltd, WO95/34, NNTT 29 February, 1996, Deputy President Sumner said:

   “The Tribunal has concluded that in general the Aboriginal Heritage Act, with the information procedures including the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers given to all licensees and the letter sent when inquiries are made of the Aboriginal Affairs Department about sites, is adequate to ensure that there is unlikely to be interference with sites of particular significance on the basis that the grantee parties act lawfully. This is because the information received by the licensee means that they will have been put on notice of the possible existence of sites and could not make out the defence in s.62 based on lack of knowledge, if charged with an offence. In order to act lawfully and avoid sites grantee parties will need to consult with native title parties.”

1. However, in the absence of any relevant evidence in relation to these matters, it will not in the usual case 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.”

1. 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.”

1. 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.”

1. 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

1. 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:

“(a)the Lumuku, Kawarre and Kawarypunjai Aboriginal Communities lie within the vicinity of the tenements;

(b)in practice the grant of a tenement of the type proposed may involve the imposition of conditions, which are directed to the protection of any Aboriginal community on the land.

Reserves

(c)in relation to the land the subject of Reserves 39897 and 39898, 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.

(d)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 recommendation of the responsible Minister or the responsible Minister and the body or person in which the control and management of the reserve is vested.

(e)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

(f)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.

(g)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)used as or 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 statement of contentions.)

The grantee purported to address this issue in paras 5 and 7-15 of his contentions.

1. The objectors in their statement of contentions set out their reasons for asserting the opposite proposition (at paras 10-27 which are set in full below):

   “10.The objector contends that the act is likely to interfere directly with the carrying on of the community and social activities of the native title claimant group and therefore is not an act attracting the expedited procedure (section 237(a) NTA).

   11.Direct interference is not confined to physical interference: Ward v The State of Western Australia (1996) 134 ALR 557 at pp. 26-27.

   12.The community need not be resident on the land in order to experience disruption due to unsupervised exploration activities on their traditional country: Ward.

   13.The community of native title claimants for the area under consideration is bound by its laws and customs to give consideration to any requests for the use of their country and resources by other peoples.  The community of native title claimants is grounded in the landscape, what non-Aboriginal people call geography, what Aboriginal people call “country”.  It is not possible to separate people and country.  To separate the native title claimant group from the activities that occur on their land is to deny the very basis of their community life.

   14.In accordance with their laws and customs, the native title claimant group must “look after” their country.  The concept of “looking after” is fundamental to relationships between countrymen and country.  The native title claimant group should therefore be asked before any exploration begins on their land so that they can ensure that their community and social and traditional activities are maintained.

   15.At a general level, people “worry” for country and fear for the safety of those who don’t know the country.  Aboriginal people believe that the country is the manifestation of their Dreaming and as such is enlivened by the beings of the Dreaming.  Some of these beings are benign and others are extremely dangerous.  There is a responsibility on the part of those who know to ensure that places are cared for and that people are protected from things that they do not understand.

   16.If a person, or persons, who are held to be responsible for a certain area of country are seen to be neglecting their duty of care there are often very dramatic repercussions to the social, physical and spiritual fabric of society.  People will often state that they must “look after” and place “properly” and if they do not, there could be natural disasters such as flooding, personal injury and even death or more catastrophic regional events.

17.“Property” is determined within the laws and customs of the society, it might be that special words are said as approaching the location, that no man can visit the location or no woman, perhaps the ground must remain undisturbed, the water snake might need to be “made happy”, strangers might have to be introduced to the country for their own safety and so on.  Whatever the procedures, they must be done and done “properly”.  Individuals are often blamed for having not looked after their country “properly” especially when the country has been found to be disturbed and the community has not been involved in the process.  The neglect of those responsibilities, by inaction or default, can have extensive implications within the local (residential) community or the community of native title claimants generally.  The denial of the right to negotiate could cause severe disruption to all levels of the community.

18.The native title claimant group continues to assert their rights, in particular, that they be asked before any development occur on their land.  In this present situation the native title claimant group is attempting to ensure that the carrying on of their community and social activities are maintained and not unduly interfered with.  The native title claimant group is both familiar and experiences with the processes of negotiation with explorers on their land.  They recognise that their responsibilities to their country and the carrying on of their community as well as to the explorers are dependent on negotiations and consultations being conducted appropriately from the outset.

19.Unregulated but otherwise lawful mineral exploration activity in these areas, particularly any ground disturbing activities, is likely to directly interfere with and adversely affect the community and social activities of the objector and those on whose behalf the objection is brought.

20.The activities carried out by the native title claimant group over the Application Area include hunting, gathering, foraging, and conducting social, cultural, spiritual and ceremonial activities.

21.These activities may occur over some or all of the Application Area.  Further, some activity (eg. social, cultural, spiritual or ceremonial) may take place from time to time away from the Application Area but will be significantly affected by the proposed uses of that area.  This is so because the coherence of the entire cultural and social system is dependent on the exercise of responsibilities by smaller groups in relation to particular areas of land.  Imbalances in the exercise of such responsibilities may affect the entire community and cause distress to larger bodies of people being the community of native title claimants.

22.The lands in question are the very basis of the social, cultural and economic structures of the native title claimant group.  The native title claimant group’s ability to maintain existing social structures will be diminished by the intrusion of a new economic force into the landscape which will create the possibility of undermining traditional social structures and modes of decision making.  This is demonstrably true in other areas of Aboriginal Australia where exploration/mining companies have become major shapers of the physical and social landscape.

23.The cultural uses of the landscape by the native title claimant group would be diminished.  For example, with respect to the conduct of burial practices, an undisturbed place is required and only known relatives are allowed to be present.  The proposed acts are likely to disturb the land within the application area and thus severely diminish the native title claimant group’s ability to exercise this important cultural right.

24.The native title claimant group’s diminished ability is also in respect of Dreaming relationships between persons and country which give rise to traditional and contemporary songs. Such songs, in turn, become important elements of the traditional economy of the native title claimant group.

25.The objector contends that the native title claimant group alone has the requisite knowledge to look after the country and their community.  They are aware that, without the right to negotiate, the grantee party is not legally obliged to enter into an agreement with them as to how exploration is to take place on their country.

26.The objector contends that it would be a contravention of the laws and customs of the native title claimant group if they were not involved with this process of exploration on their country.

27.The application by the objector to be recognised as a native title holder is brought to enable the native title claimant group to continue to observe their laws and customs, to support their ongoing negotiations with explorers on their land and to assist them to engage effectively in the care of their country and the maintenance of the community of native title claimants.”

1. The objectors rely also upon the affidavit of Shirley Drill sworn 18 July 2000. She deposes at para 4 that “I have seen the map where the mining mob wants to work and it has been explained to me that they want to explore in this country. This country is next Kawarre[the aboriginal community where she lives]. I know this country well.”

   The map to which she refers is not specified and cannot be sensibly be identified as any of the State’s maps in evidence or the Tribunal map, which was created after her affidavit was sworn. However, the failure to specify the map is cured to a large extent by the detailed references in her affidavit so that I am satisfied in the absence of cross-examination or any evidence to the contrary that she intended the words “this country”, “the river and creek country” and “the place where the mining mob wants to go/explore” to refer whenever they appear in her affidavit to the land encompassed by all five tenements.

1. Ms Drill’s uncontradicted evidence is that members of the Aboriginal communities at Kawarre and Date Palm (Lumuku) “often take our children out there to teach them about their country, the stories for country and bush tucker”(para 9) and “we get our tucker in that country from the rivers and creeks. Bush turkey, fish, crocodiles, turtles, bush plum, bush tobacco, bush tomato and sugar bag all come from the river and creek country.”(para 10).

1. The State’s evidence and the Tribunal map shows that there is a third Aboriginal community situated on E80/2340 as well. It is reasonable to infer that those Aboriginal people also conduct similar activities on the proposed tenements, particularly 80/2340 and 2341 to which they are closer than the Kawarre and Date Palm Peoples.

1. The grantee has not led any evidence as to the extent to which he intends to exercise his rights under the exploration licences. However, the grantee has asserted that there has been previous mining exploration activity of an unspecified nature “(i)n the large majority of the area contained in the application” under certain exploration licences. There has been no attempt to support those assertions by documentary evidence which would have been readily available as to the nature and extent of any previous mining activities on any part of the tenements. In those circumstances, I give no weight to the grantee’s assertions as contradicting the objectors’ evidence as to their community and social activities on the tenements and in assessing the likelihood of direct interference therewith by the proposed mining activity.

1. In conclusion, having assessed the evidence before me I find that the regular community and social activities of the objectors described by Ms Drill are likely to be interfered with directly by the grant of the tenements.

Section 237(b) Interference with Areas or Sites of Particular Significance

1. 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:

“(a) the Aboriginal Heritage Act 1972 applies to the land, and provides for Aboriginal areas or sites as defined by section 5, of particular significance to 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 using the land for any purpose which would result in a breach of Section 17. Section 17 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 grantee purported to address this issue in paras 5 and 7-15 of its contentions.

1. The objectors contended that the Aboriginal Heritage Act was inadequate to protect  any sites of particular significance (paras 28-33) and further at para 36:

“The objector contends that 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.”

1. The evidence as to sites on the Register of Sites is discussed at paras 22-25 above. Further, the grantee concedes at para 6 of his contentions that there are Aboriginal sites on the tenements. Ms Drill in her affidavit deposes to her personal knowledge of the existence of sites on all of the tenements and to their particular significance to her and the objectors. She deposes to the existence of burial places “in the Osmond Ranges”(para 5). The Tribunal map indicates that the Osmond Ranges and environs extend through all of tenements, and are centrally located in E80/2338-41. She swears that there are “important Dreaming areas…all along the Osmand Ranges right across to the Ord River” and that “some of the areas in these ranges comes from Kaleruny (water snake).”(para 6). Further, she deposes to the existence of records kept by the objectors of  “more than 250 areas in and around Pumululu(sic) National Park and Conservation Reserve that are important to our families from the Dreaming. Many of those areas are in the ranges north of the National Park”(para  7). She also deposes to records of more than 250 archaeological sites in and around Pumululu(sic) National Park and Conservation Reserve many of which are “painting sites or places where the old people were camping before white men came to this country. We have to look after these places too.”(para 8).

1. On the basis of this uncontradicted evidence, and since I give no weight to the assertions of fact made by the grantee at para 5 of his contentions(see para 54 above),  I find that Ms Drill has more than sufficiently indicated her personal knowledge of the existence of sites consistent with the sites having “particular significance” to her and in accordance with their traditions to the persons who are the holders of native title in relation to the claimed land on the proposed tenements. She has also demonstrated in my view a strong connection with the claimed land.

1. Consequently, the issue of likelihood or otherwise of interference with these areas or sites arises for determination. In my view, the presumption of regularity does not lead me inexorably to find in this case that no such likelihood exists. The grantee has given no sworn evidence of his intention to comply with the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers or of any details as to how in fact he will proceed so as not to interfere with the multifarious interconnected sites on the tenements.  The area of the proposed tenements has been shown to be extremely site-rich and it is also clear that the vast majority of those sites are likely to be complex interlocking sites: as to which see Re Miuruwong and Gajerrong Peoples (1996)128 FLR 90. In these circumstances, it was incumbent upon the grantee to lead some sworn evidence upon the basis of which the Tribunal might be assured that interference, intentional or otherwise, is not likely. It is not enough to rely upon the presumption of regularity whilst asserting as this grantee does at para 12 of his contentions:

“The State have(sic) formulated conditions for the safeguards under which exploration can proceed. It is submitted that under these circumstances and where conflict of land usage arises, then the overriding right of the State to explore its resources should be paramount to any native title that may be found to exist."

1. In  conclusion, repeating my conclusion at para 54 above as to the weight to be given to the grantee’s assertions at para 5 of his contentions and taking into account the strong evidence of connection and of the site-rich nature of the land comprising the proposed tenements, I find that there is a real chance that the grants of the tenements are likely to interfere  with sites of particular significance.

Section 237 (c) Major Disturbance to Land or Waters

1. The State  addressed  this issue in para 6 of its contentions. The grantee purported to address this issue in paras 5,7, 9-15 of his contentions.

1. The objectors made the following contentions (at para 41-48):

“41.The objector contends that the act is likely to involve major disturbance to any land or waters concerned and will create rights whose exercise is likely to involve major disturbance and therefore is not an act attracting the expedited procedure (section 237(c) NTA).

42.In determining that an act or the exercise of rights will not involve major disturbance to the land or water concerned, that determination is not to be made solely or exclusively by applying the standards of the broader non-Indigenous community.

43.In Dann all three judges were of the opinion that “major disturbance” should be given its ordinary English meaning.  However, the use of the word “major” introduces a “subjective element and hence potential for community bias in determining whether a disturbance is major”.  As the disturbance is “… necessarily a local phenomenon”, it may be that exploration activities have such an impact on Aboriginal people who live in or use the affected area that a determination that those activities constitute a major disturbance to the land and waters concerned is warranted.

44.Tamberlin J held that the correct approach was to take into account the concerns of the Aboriginal community, including matters such as their community, customs, traditions and cultural concerns and that the reference to these matters in sections 237(a) and (b) does not displace the mandate expressed in s.109(2) of the NTA that, in conducting inquiries, the Tribunal must take into account the cultural and customary concerns of the Aboriginal people.

45.An element of the community, customs, traditions, and cultural concerns of the native title claimant group is expressed in their determination to respect and protect the sentient nature of their country.  This nature can be amply demonstrated, especially by having regard to certain protocols and relationships to country which must be observed by the native title claimant group. Protocols and relationships to country have been described in various paragraphs above.  These protocols and relationships are not transferable to non-native title claimants.  The objector considers that these protocols must also be observed by the grantee party

46.The objector contends that the grant of the exploration licence will result in major disturbance to the land or waters concerned as it will confer rights to the grantee party to excavate material and take and divert water from waterways within the Application Area.

47.Further, the grantee party will be authorised to extract and remove up to 1,000 tonnes of material: s.66 Mining Act 1978 (WA) (Mining Act). In addition, further amounts in excess of 1,000 tonnes may be extracted and removed with approval from the Minister (s.66 Mining Act). Significantly, the Minister has on previous occasions made approval for the extraction of up to 50,000 tonnes of excess material. Ministerial approval for removal of amounts over 1,000 tonnes is not subject to the approval of the native title claimant group.

48.Using the test expressed above, the exercise of the rights granted under the exploration permit would constitute a major disturbance to the land or waters concerned by the standards of the broader non-Indigenous community.”

1. Ms Drill gives evidence that bush tucker which her people regularly take from the tenements comes “from rivers and creeks”(para 10) and that “(nearly) all the creeks in this country run into Rock and Osmand creek and then into the Ord River. It’s a big river and they all join up and the water comes off our country. We don’t want to see the rivers buggered up.”(para 12). The Tribunal map clearly shows that the area of the tenements is mostly mountainous  country forming a water catchment leading down to the Ord River. As Deputy President Franklyn pointed out in Scotty Birrell & Ors v. State of Western Australia (WO 99/574) NNTT, 25 September, 2000 at p. 5, the definition of ‘land’ in the Mining Act (s.8) includes “water”. Ms Drill deposed clearly to the reliance on “the river and creek country” for bush tucker by her people and there is, in my view, a real chance that the exercise by the grantee of his rights under the proposed licences  could interfere with creeks and rivers on the tenements so as to adversely affect the land subject to the tenements and in such degree as to amount to a major disturbance to land. On the basis of the evidence before me, giving due regard to the conditions and regulatory regime which would apply to the exercise of the exploration licences when granted but no weight to the assertions made in para 5 of the grantee’s contentions, 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 licences is likely to involve major disturbance to the land or waters concerned and is likely to create rights whose exercise is likely to involve major disturbance to the land subject to the tenements.

Determination

1. The Tribunal determines that the granting of Exploration Licences 80/2337-41is not an act which attracts the expedited procedure.

J. E. Stuckey-Clarke
Member
25 June 2001