Western Australia/Pentry Pty Ltd/Anthony Watson on behalf of the Nykina and Mangala Native Title Claim Group (WC99/25)
[2001] NNTTA 55
•26 June 2001
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Pentry Pty Ltd/Anthony Watson on behalf of the Nykina and Mangala Native Title Claim Group (WC99/25), [2001] NNTTA 55 (26 June 2001)
Application No: WO99/738
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an Objection to Expedited Procedure Application
The State of Western Australia (government party)
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Pentry Pty Ltd (grantee party)
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Anthony Watson on behalf of the Nykina and Mangala Native Title Claim Group (WC99/25) (native title party)
REASONS FOR DETERMINATION
Tribunal: Ms Jennifer Stuckey-Clarke, Member
Place: Sydney
Date: 26 June 2001
Catchwords: Native title – future act –proposed grant of exploration licence– expedited procedure objection application – proposed grant found to attract expedited procedure
Legislation: Native Title Act 1993 (Cth)
Application No: WO99/738
Background
By notice dated 2 August 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 an exploration licence, O4/1137 (“the exploration licence”), to Pentry Pty Ltd (“the grantee”). The exploration licence was over an area of 71.84 square kilometres located 101 kilometres north westerly of Fitzroy Crossing, in the Shire of Derby-West Kimberley (lat. 18o 21 minutes, long. 124o 39 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 8 September 1999.
On 13 December 1999, Anthony Watson on behalf of the Nykina and Mangala Native Title Claim Group (“the objector”) lodged an objection with the Tribunal (by way of Form 4 made pursuant to the Native Title Tribunal Regulations 1993) to the statement in the s.29 notice that the grant of 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 set forth those reasons in para 7:
“(a)It 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 Jarlmadangah, Bulginjirr and Loomah communities and at Derby and Fitzroy Crossing.
(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. In prescribed circumstances, the Minister may extend the term of a licence by periods totalling a maximum of four years and in exceptional circumstances further periods 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. (Regulation 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 in Water and Irrigation Act 1914 (WA)) water from any natural spring, lake, pool, stream on the subject land.(s.66 Mining Act)
(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.67Mining 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:
“(a) Anthropological Documents.
(b)Mining Techniques Document,
(c) Document outlining the impact on carrying-on of the community or social activities.”
On the same day as the objection was lodged, the objector filed an Application for Determination of Native Title WC99/25 encompassing the area of land subject to the s.29 notice concerning the grant of exploration licence O4/1137 (WC99/25). This Application was held to comply with the requirements of s. 190 of the Act and the objection application was accepted by the Tribunal on 1 February 2000. The area of land encompassed by WC99/25 is 71.84 square kilometres.
On 2 February 2000, the State, parties were notified of the objections and a preliminary conference was held on 10 February 2000. Between 10 February and 20 April, the grantee and native title parties engaged in negotiations with a view to reaching agreement and the objection being withdrawn. On 20 April the Tribunal made directions for the provision of documents for the Tribunal to conduct an inquiry. The State lodged with the Tribunal a statement of its contentions and a copy of the documents upon which it proposed to rely on 22 and 24 May 2000. The grantee indicated on 6 July 2000 that it would rely on the statement of contentions and documentary evidence submitted by the State. On 5 July 2000 the objectors indicated that they would rely on the statement of contentions lodged with the Tribunal in the matter WO99/800. On 18 August 2000 the objector lodged an affidavit of Peter Dann sworn on 18 August 2000. On 11 August the State raised the possibility of the existence of jurisdictional objections to the continuance of the inquiry. On 28 September 2000, the State indicated that it would not pursue jurisdictional issues in relation to the objection. The objectors lodged a substituted statement of contentions on 26 October 2000. On 16 March 2001, the matter was referred to me for determination. On 23 March 2001, a topographical map of the proposed tenement prepared by the Tribunal(“the Tribunal map”) was provided to the parties and no objections were raised to the Tribunal’s reliance upon it in this determination.
The Evidence
The documents produced by the State 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 3114/975 and 576, reserve 23226 (a stock route) and a road.
The documents produced by the State make clear that there is no registered site on the proposed tenement.
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.
Since 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, para. 8.
The objectors rely upon the affidavit of Peter Dann sworn 18 August 2000.
Peter Dann deposed as follows:
“I, Peter Dann of Looma Community, via Derby, Western Australia, Pensioner, say on oath as follows:
1.I am a registered native title claimant for the area for the area(sic) where the proposed exploration licence is located and I can speak for that country.
2.I was born in that area on the old Paradise Station. That is my father’s country and I grew up in the bush around there..
3. I live nearby in Looma Community now but I’m still trying to get a living area in that country so I can go back and live there.
4.I have seen the map of where the mining company wants to go and understand where they will be working. That is my country and I know it very well. There are important places for us in that area and I’m worried that the mining company might do something to those places.
LIKELIHOOD TO DIRECTLY INTERFERE WITH SITES OR AREAS OF PARTICULAR SIGNIFICANCE
5.There is a place inside that area where the mining company wants to go called Durdurdu where there is a hot spring. There are cave paintings there and we built a fence around it to protect that place. This area is very important, that’s why we built a fence around that cave. This area is part of a story about snake fighting with a blue-tongued lizard. The mining company should check with us first about that area so we can make sure they won’t do any damage.
6.In this area there are some old gravesites. I know where these are and I could go with the mining company to make sure they go around them. I’ve done some of this work with mining companies in the early nineties.
7.It’s my job to look after those places because I’m from that country.
LIKELIHOOD TO DIRECTLY INTERFERE WITH THE CARRYING ON OF THE COMMUNITY OR SOCIAL ACTIVITIES
8.I have taught my children about the important places and the bush tucker in that area. We still visit that area for hunting, bush tucker and looking after the country. We go camping there with all my family and hunt for goanna, snake and kangaroo. There’s lots of bush tucker in that tenement area.
9.I’m worried that the mining company could stop us from going there.
LIKELIHOOD OF MAJOR DISTURBANCE TO ANY LAND OR WATERS IN THE AREA
10.When I was young I saw mining mob working. When they finished they didn’t cover up those holes and just left them there. I don’t want that to happen again.
11.I know that the mining mob are supposed to clean up the country and cover those holes that they drill but I know that they don’t always do that and sometimes leave a big mess.
12.If the mining company talks to us first we can stop these things from happening.”
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.
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:
“(a)there are no Aboriginal communities situated on, or in the vicinity of, the proposed tenement.
Reserves
(b)In relation to the land the subject of Reserves 23226, 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 or 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)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 contentions.)
The objectors in their substituted statement of contentions set out their reasons for asserting the opposite proposition at paras 14-21 which are set 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 Looma Community 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 on the native title claimants including:
(i)The gathering of bush tucker and food: Affidavit of Peter Dann, para 8;
(ii)The maintenance of areas of particular significance: Peter Dann para 5, 6, 7 and 8;
(iii)The teaching of traditional laws and customs to children: Peter Dann para 8;
(iv)Religious activities: Peter Dann para 4;
(v)Quiet enjoyment: Peter Dann para 8.
These activities occur over some or all of the Application Area.
17.For the purpose of assisting in the interpretation of section 237 of the NTA, paragraph 20.39 of the Native Title Amendment Bill 1997 Explanatory Memorandum is relevant: Smith v South Coast Metals. As explained in that paragraph:
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.
18.If the act is granted the grantee party will attain rights to conduct its exploration activities over this land and directly interfere with the carrying on of the community and social activities of the Nykina and Mangala native title claimants.
19.The interference will result from both the presence of mining personnel and equipment on or near the areas where those activities are conducted and exploration activities, including the ground disturbance permitted by the proposed tenements and associated environmental impacts, noise and dust, on flora and fauna and the natural landscape.
20.Further, the act of ‘looking after country’ described by Peter Dann (paras. 7 and 8) is a community or social activity of the native title holders which would be directly interfered with by the grant of the exploration licence.
21.The community of native title holders actively look after country, by visiting and maintaining sites (Dann paras. 7 and 8). This activity is conducted by individuals with specific responsibility who are dawawang for that area. There is a real or not remote chance that the carrying out of this activity will be affected and interfered with by the grant of the tenements. Native title holders cannot look after country upon which an exploration and ground breaking activity is occurring without consultation or permission. In the past the activities of mining companies have caused such interference (Peter Dann paras. 10 and 11).”
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 directly contradict the State’s evidence that there is no Aboriginal community in the vicinity of the proposed tenement. Peter Dann deposes that he lives “nearby in Looma Community now” but that he is “still trying to get a living area in that country so I can go back and live there” (para 3) and that he was born on the old Paradise Station which was on the area of the proposed tenement (paras. 1 and 2). However, reference to the Tribunal map shows that there is no Aboriginal community in the vicinity of the proposed tenement and that the Aboriginal community of Looma is approximately 50 kilometres from the proposed tenement. Further, the Aboriginal community of Paradise Station is also approximately 40 kilometres from the proposed tenement. This casts some real doubt upon Peter Dann’s statement in para 4 where he says:
“I have seen the map of where the mining company want to go and understand where they will be working” (para 4).
Since no map was annexed to Mr Dann’s affidavit, it is not possible to ascertain the
accuracy of the understanding he deposes to. In these circumstances, I conclude that there is a real confusion in his affidavit between the larger area of the native title claim and the area of the proposed tenement.
In my view, the affidavit of Peter Dann does not provide sufficiently specific or relevant evidence of the carrying on of community or social activities by the holders of native title on the land comprising the proposed tenement. His evidence was general and non-specific to the effect that the “area” identified on the unidentified “map” was used for hunting and food-gathering, for camping and activities involving the teaching of traditional laws and customs to children (para 8). No evidence is given of the frequency of these activities or any reference given to the specific sites at which these activities are conducted.
In these 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. I come to this view noting, however, that it may well be the case that specific and relevant evidence could well have been adduced by them if appropriate attention had been paid to the preparation of evidence of sufficient specificity, relevance and detail.
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:
“(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 objectors contended that the Aboriginal Heritage Act was inadequate to protect any sites of particular significance (paras 22-28, 29-31) and says further (at 32-4):
“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 regularity(sic). This fact also established that the risk of damage to sites by future exploration is not remote or fanciful.”…..
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 no site on the Register of Aboriginal Sites as disclosed in the State’s documents.
However, the evidence in Peter Dann’s affidavit at paras 5 & 6 refers to his personal knowledge of the existence of burial sites on the area of the proposed tenement and to an area called Durdurdu where there are cave paintings and gravesites. In those paragraphs he deposes to the existence of these sites and to their importance which is of particular significance to him and the claimant group (paras. 4-7) and, in my view, to a significance which is particular in the requisite sense.
If this evidence could be accepted, I would have found that Peter Dann has sufficiently indicated his personal knowledge of the existence of sites consistent with the sites having “particular significance” to him and in accordance with their traditions, to the persons who are the holders of native title in relation to the claimed land, on the area of the proposed tenement. However, reference to the Tribunal map indicates that the area called “Dududu” is an Aboriginal site approximately 30 kilometres away from the proposed tenement. I infer that it is this area to which Peter Dann refers in paragraphs 5-7 as “Durdurdu”. The failure to annex "the map” to which he refers in para 4 generates doubt as to the deponent’s understanding of the area of the proposed tenement and this doubt further justifies the inference. Further, no submissions were made by the objectors in respect of the Tribunal map. Therefore on the evidence before me I conclude that the sites referred to in paragraphs 5-7 of his affidavit are not proven to be on the land comprising the proposed tenement. Thus, I am unable to find that these are any sites of particular significance on the proposed tenement.
Consequently, the issue of likelihood or otherwise of interference with any such area or site for determination does not arise. However, I express my view on that issue. In my view, 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. Further, although it is contended by the objector that the existing legislation is inadequate to protect such sites, there is no evidence before me on the basis of which that contention might be made out.
Section 237(c) Major Disturbance to Land or Waters
The State addressed this issue at paras. 6-7 of its contentions.
The objectors made the following substantive contentions (at pars. 35-44):
“35. The objector contends that the act is likely to involve major disturbance to the 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),
36.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 be made solely or exclusively by applying the standards of the broader non-Indigenous community but rather, must include standards operating within the Indigenous community.
37.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 “…. 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.
38.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 reference to these matters in section 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. The same is true of the amended provision: Smith WO99/511.
39.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.
40.In particular, the Grantee Party will be authorised to extract and remove up to 1,000 tonnes of material: s.66 Mining Act 1978 (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. Approval of amounts over 1,000 tonnes is not subject to the approval of the native title holders.
41.As contended above, whether the grantee party adduces evidence of the intended extent of exercise of those rights or not, that evidence must be taken to represent present intention as well as the minimum extent that the rights will be exercised. Any evidence will not necessarily reflect the actual exercise of rights conferred by the exploration tenement.
42.In determining section 237(c) the Tribunal must also consider the extent and duration of the proposed work, the regulatory regime and the view of the native title claimants: Smith.
43.The sentient nature of the country for the native title Claimants can be amply demonstrated and contains certain protocols and relationships to country which must be observed by the native title claimants. These protocols and relationships are not transferable to non-native title claimants.
44.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.”
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 04/1137 is an act which attracts the expedited procedure.
J. E. Stuckey-Clarke
Member
26 June 2001
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