Western Australia/Roebuck Resources NL/Kim Aldus, Frank Chulung and Thelma Birch (WC99/31)
[2001] NNTTA 47
•13 June 2001
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Roebuck Resources NL/Kim Aldus, Frank Chulung and Thelma Birch (WC99/31), [2001] NNTTA 47 (13 June 2001)
Application No: WO99/831
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 (Applicant/Government Party)
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Roebuck Resources NL (Grantee Party)
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Kim Aldus, Frank Chulung and Thelma Birch (WC99/31 (Native Title Party)
REASONS FOR DETERMINATION
Tribunal: Ms Jennifer Stuckey-Clarke, Member
Place: Sydney
Date: 13 June 2001
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection application – proposed grant found to attract expedited procedure
Legislation: Native Title Act (1993)
Application No: WO99/831
Background
By notice dated 19 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 two Exploration Licences, being 80/2473 and 80/2474, to Roebuck Resources NL (“the grantee”). The first Exploration Licence, 80/2473, was over an area of 231.05 square kilometres located 68 kilometres north easterly of Wyndham, in the Shire of Wyndham and East Kimberley (lat. 15o 07 minutes, long.128o 37 minutes). The second Exploration Licence, E80/2474, was over an area of 188.08 square kilometres, located 56 kilometres north easterly of Wyndham in the Shire of Wyndham and East Kimberley (lat. 15o 14 minutes, long.128o 34 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 25 August 1999.
On 14 October 1999, Kim Aldus, Frank Chulung and Thelma Birch (“the objectors”) lodged their objections (by way of Form 4 made pursuant to the Native Title Tribunal Regulations 1993) to the statement in the s.29 notice that the grants of both Exploration Licences attracted the expedited procedure with the Tribunal.
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 Kununurra and Ningbingi community.
(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).”
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, and
(c)Document outlining the Social Impact of Exploration Activities on
Community Life.
There is no other relevant information provided at this time.”
On the same day as the objection was lodged, the objectors filed an Application for Determination of Native Title WC99/31 encompassing both areas of land subject to the s.29 notices concerning the proposed grant of Exploration Licences 80/2473 and 80/2474 (WC99/31). This Application was held to comply with the requirements of s. 190 of the Act on 21 December 1999 and the objection application was accepted by the Tribunal on 29 February 2000. The area of land encompassed by WC99/31 is 520.675 square kilometres.
On 28 April 2000, the State and grantee were notified of the objections and a preliminary conference was held on 16 May 2000. The State lodged with the Tribunal a statement of its contentions and a copy of the documents upon which it proposed to rely by 11 July 2000. The grantee also indicated that it would rely on the statement of contentions and documentary evidence submitted by the State. On 24 July 2000 the objectors submitted their statement of contentions to the Tribunal. On 1 August 2000, the grantee advised the Tribunal that it had changed its name to Swiftel Resources and that the application for Exploration Licence 80/2473 had been withdrawn on 11 July 2000. On 14 August 2000 the objectors lodged an affidavit of Thelma Birch and an unsworn witness statement of Kim Aldus with the Tribunal and requested that the hearing should take place on country at the Ning Bingi Community. On 14 August 2000 the objectors lodged with the Tribunal an edited copy of a report entitled “A Report of the Disturbance to Aboriginal Sites on Petroleum Lease EP126, in the Ning Bingi bore area, East Kimberly region of Western Australia”(“the Report”). On 29 September Deputy President Sumner set the matter down for hearing on country in the week commencing 23 October 2000. However, on 23 October 2000 the hearing did not proceed and the objectors filed a substituted statement of contentions and an affidavit of Kim Aldus affirmed on 29 November 1999. At the adjourned listing hearing on 27 October 2000, Deputy President Sumner noted that the Tribunal had received the substituted contentions and affidavits and the objectors said that no further documents would be filed. Deputy President Sumner advised that he would frame a suppression order in relation to the Report and it would then be made available to the Grantee and the State. The Tribunal noted that there was no request from any party to have the matter heard on country and that the parties were content for the matter to be heard “on the papers”. 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 was provided to the parties and no objections raised to the Tribunal’s reliance upon it in this determination. On 1 June 2001, I made a suppression order in respect of the Report.
The Evidence
The documents produced by the State reveal that the Ning Bingi Aboriginal Community is approximately 5.5 kilometres east 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 3114/1176.
The documents produced by the State make clear that there is one registered site on the proposed tenement named “Mijing”, identified as site 12951 on the Interim Register. They disclose that the site is a reliable, ceremonial and mythological site, that access to it is closed but there are no gender restrictions in respect of it. Further, it is not classified as vulnerable. It was reported by Miriuwung and Gajerrong Families Heritage and Land Council.
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 21 of the substituted contentions:
“A search of the Register of Sites held by the Aboriginal Affairs Department conducted by the Government party reveals that there are 14 registered sites in the original exploration licence application area, and the native title holders are aware of many other unregistered sites within the application area, and that native title holders are aware of many other unregistered sites within the application area (see p.15 Anthropological Report para 4 Affidavit of Thelma Birch para 7 Affidavit of Kim Aldus). It is common knowledge that not all Aboriginal sites are registered [Birrell & Ors v. WA WO 99/71 NNTT 25 September 2000].”
(I note at this stage that page 15 of the Report lodged with the Tribunal is blank.)
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 and that the grantee intends to exercise its rights under the Exploration Licence, if granted, to their full extent: s.66 Mining Act and see objectors’ substituted statement of contentions, para 8.
The objectors rely upon the affidavit of Thelma Birch sworn 2 August 2000 and the affidavit of Kim Aldus sworn 29 November,1999.
Thelma Birch deposed as follows:
“I, Thelma Birch of Kununurra, Western Australia, Pensioner, say on oath as follows:
1. I am a registered native title claimant for the area where the proposed exploration licences are. The claim is WAG6029/99.
2.I have seen a map where the company wants to work and I understand what they want to do there. I am concerned that there might be damage to that important country.
3. I live in Kununurra, close to Ningbing - the country of my father and great-grandparents. My country also. Today we still go out and go hunting. We take the young children when we go and we teach them how to hunt and about bush tucker. We still get bush tucker when we go out. These days I come out to Ningbing to look after the country. I bring out some of children and grandchildren with me when I come. We go to Ningbing to camp and fish and hunt for kangaroo and goanna.
LIKELIHOOD TO DIRECTLY INTERFERE WITH SITES OR AREAS OF PARTICULAR SIGNIFICANCE
4. In that area that the company wants to look around in are places for the
old people – you know, where the old people are buried. These places cannot be touched and we would worry and feel hurt if any damage were done to those places. You know we would cry for those places and those old people.
LIKELIHOOD TO DIRECTLY INTERFERE WITH THE CARRYING ON OF THE COMMUNITY OR SOCIAL ACTIVITIES
5. Many of the places that we visit and need to take care of are in the area that the company wants to look around in. Me, my sisters and brother, and all our kids and then their kids too – the grandchildren – like to visit and camp in that country to get some quiet from town and live from the land, you know, hunt and fish. It is hard to teach all the young people about our country when mining companies are always looking around and digging up the country.
6. Another thing too. If something bad happens to that country, the
country we were told to look after by our old people – well, this causes trouble for our family. All the other people for the country round about will say we didn’t look after things, you know let our country suffer. These things come back on us later.
LIKELIHOOD OF MAJOR DISTURBANCE TO ANY LAND OR WATERS IN THE AREA
7. Those places for old people they must not be hurt. The company has to come and talk to us straight and we have to tell them where they can go. This is not being cheeky, this is important for our way and to look after the old people.
Kim Aldus deposed as follows:
“I, Kim Aldus, of Kununurra, Western Australia, Language Worker, affirm as follows:
1.My gardiya name is Kim Aldus, my Aboriginal name in Boongara. I get that narregoo (ancestral) name Boongara from one of my gagoong (father’s fathers).
2.My father was called Wajija and his gardiya name was Albert. My gagoong (father’s fathers) were Boongara who I spoke of before and also Ngabij – Grant was his gardiya name. My ngajang (father’s mothers) were Jandoony – her gardiya name was Daisy and Darrng – her gardiya name was Maggie. All these old people were the dawawang (traditional owners) for this area on the map, where the miners want to look around. These people that I have called in are dead now so I must carry on as a dawawang (traditional owner) for this country after them.
3.When I was little I lived with my family on Carlton Hill Station. My father worked there doing stock work when I was young boy. Carlton Hills Station now takes in Ningbingi. When I was maybe six or seven I was sent to school nearby in Kununurra.
4. The old people taught me the law and I went through that marndiwa (initiation ceremony) when I was thirteen. We keep learning the law. It keeps going like that.
5.We teach the young people the law.
6.I come out to Ningbingi, I have a house there. I come out to Ningbingi to look after the country. I bring others in my family out with when I come. My old ngajang, Daisy Jandoony, always wanted to live back on that country near the old station so she took us out their – me, my mother, father and my young brother Mark and that mother for Julie B. (nanany) and Vincent B. as well – in the 80’s to set up a community. This is why there are houses and a community at Ningbing today because of those old people. The dawawang (traditional owners) that are left must keep this going.
7.There are special places there at Ningbing. We have to look after them. Once a company came here to look around and they went to close to those places. I can’t really say too much, because I can’t talk about it in front of women. But that mining mob did the wrong thing. They should have come and spoken to us first. They have to come and ask us, and they didn’t. So then they had to fix it up.
8.When people come to this country, like the mining mob, we tell them where they can go and where they can’t go. They can’t just walk on and do what they like, they have to listen to us.
9.When people come into this country they have to ask. Other Aboriginal people when they come, we welcome them properly. Like when people come for ceremony, for Waling. That’s when people come from the sunrise side and they send things to the sunset side. That sunset mob send something else back to the sunrise side. They might send back spear, jagooli (pearl shell), goodang (hair belt).
10.Those ceremonies still happen today. We still exchange things. Also, when people come to this country, they might go hunting, then the proper thing to do is to share what you catch with the old people for that country.
11.That country in this claim is good for hunting. We can get ground and tree sugarbag (ngareng), bush yam, daloong (green plum), jamood (bush turkey) and dawarrg (sand goanna).
12.I am working at the Mirima Language Centre as a language worker, recordiing the stories and names that come from this country in and around the claim area. It is very important to keep the language and culture going. It is important for me to keep that country strong, because I am a dawawang (traditional owner) for the area. You gardiya- white people – might say that I feel responsible for that country, in your language.”
Also, by letter dated 2 August 2000, the objectors advised that they sought to rely upon the Report, although the identity and expertise of its author, Nicholas Green, is not established by any evidence. The Report is dated March 1988 and deals with “disturbance to aboriginal sites on petroleum lease EP126” but no evidence has been led as to the area covered by that lease and its relation to the proposed tenement. Further, the “disturbance” was caused by a company unrelated to the grantee. I will rely on this evidence only as corroborative of the facts deposed to in paragraphs 7 & 8 of the affidavit of Kim Aldus since he is cited in the Report as one of the interviewees of Mr Green but the weight, if any, given to the Report, may be very slight in light of its unverified origins and the lack of any evidence as to the manner in which it relates to the area of the proposed tenement.
Further, the objectors advised that they also sought to rely upon “the findings of fact made by the trial judge in Ward v. Western Australia (1998) 159 ALR 483 and upheld on appeal by the Full Bench of the Federal Court.” As the claim for determination in Ward v. Western Australia is a separate and different claim, the totality of the findings of fact in that matter could not be considered to be directly relevant to the present inquiry. However, in the objectors’ substituted statement of contentions particular findings of fact are identified in paragraph 18 and those findings will be taken into account to the extent that they are relevant.
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.”
21.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) the Ning Bingi Aboriginal Community is located approximately 5.5km east of the tenement.
(b)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 therein, namely reporting discoveries of minerals, making safe any holes, pits, trenches, etc, and preventing damage to property and livestock.
(c)In relation to pastoral leasehold included within the proposed tenement section 20(5) of the Mining Act 1978 provides that, unless the written consent of the occupier is obtained or unless the warden by order otherwise directs…,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 objectors in their substituted statement of contentions set out their reasons for asserting the opposite proposition at paras 14-19 (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.The Application Area is adjacent to the Ningbingi Aboriginal community. Many members of the community of native title claimants with responsibilities for this area live in this community. If the act is granted the Grantee Party will attain rights to conduct its exploration activities over this land and directly interfere with the running of this community, the activities of the broader community of native title holders, the Miriuwung and Gajerrong people, and the social activities of many of the native title Claimants.
16.The grant of the tenement is likely to physically interfere with community or social activities including:
(i)The gathering of bush tucker and food: Thelma Birch Para 3 and 5, Kim Aldus para 11;
(ii)The teaching of traditional laws and customs to children: Thelma Birch para 3 and 5;
(iii)Religious activities: Kim Aldus para 7 and 9; reference at p.17 & 20 of Anthropological Report to ritual activities;
(iv)Looking after burial sites: Thelma Birch para 4 & 5;
(v)Recreation activities: Thelma Birch para 5; and
(vi)Quiet enjoyment: Thelma Birch para 5.
These activities occur over some or all of the Application Area.
17.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.
18.Further, the act of ‘looking after country’ described by Kim Aldus para 12: (see also findings of fact made by Lee J. in Ward v. WA 159 ALR 483 at 529.10,539 and 542 regarding the relevant community and not disturbed on appeal and Anthropological report filed in these proceedings) is a community or social activity of the native title holders which would be directly interfered with by the grant of the exploration licence.
19.The community of native title holders actively look after country, by visiting and maintaining sites. This activity is conducted by individuals with specific responsibility who are dawawang for that area. There is a real 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. (see Anthropological report at p.18.)”
Thelma Birch deposed as follows:
“3. I live in Kununurra, close to Ningbing – the country of my father and great-grandparents. My country also. Today we still go out and go hunting. We take the young children when we go and we teach them how to hunt and about bush tucker. We still get bush tucker when we go out. These days I come out to Ningbing to look after country. I bring out some of the children and grandchildren with me when I come. We go to Ningbing to camp and fish and hunt for kangaroo and goanna.
4. In that area that the company wants to look around in are places for the old people-you know, where the old people are buried. These places cannot be touched and we would worry and feel hurt if any damage were done to those places. You know we would cry for those places and those old people.
5. Many of the places that we visit and need to take care of are in the area that the company wants to look around in. Me, my sisters and brother, and all our kids and then their kids too – the grandchildren- like to visit and camp in that country to get some quiet from town and live from the land, you know, hunt and fish. It is hard to teach all the young people about our country when mining companies are always looking around and digging up the country.”
Kim Aldus deposed as follows:
“7. There are special places there at Ningbing. We have to look after them. Once a company came here to look around and they went to(sic) close to those places. I can’t really say too much, because I can’t talk about it in front of women. But that mining mob did the wrong thing. They should have come and spoken with us first. They have to come and ask us, and they didn’t. So then they had to fix it up.
8. When people come to this country, like the mining mob, we tell them where they can go and where they can’t go. They can’t just walk on and do what they like, they have to listen to us.
9. When people come to this country they have to ask. Other Aboriginal people when they come, we welcome them properly. Like when people come for ceremony, for Waling. That’s when people come from the sunrise side and they send things to the sunset side. That sunset mob send something else back to the sunrise side. They might send back spear, jagooli(pearl shell), goodang(hair belt).
10. Those ceremonies still happen today. We still exchange things. Also, when people come to this country, they might go hunting, then the proper thing to do is to share what you catch with the old people for that country.
11. That country in this claim is good for hunting. We can get aground and tree sugarbag(ngareng), bush yam, daloong(green plum), jamood(bush-turkey) and dawarrg(sand goanna) .
12. I am working at the Mirima Language Centre as a language worker, recording the stories and names that come from this country in and around the claim area. It is very important to keep that language and culture going. It is important for me to keep that country strong, because I am a dawawang(traditional owner) for the area. You gardiya-white people- might say that I feel responsible for that country, in your language.”
The Report is also referred to in the objectors’contentions, where pages 17,18 and 20 are cited. As I have already said, the weight to be attached to the Report is extremely slight. However, I extract below those passages from the pages cited relevant to the issue of interference with community life:
“Kajirraung and Miriwun people share in the ritual, and as such the traditional owners of the land and the traditional custodians of the law have responsibilities to a wider group of people…Other Aboriginal ritual leaders elsewhere in the Northern Territory will be concerned about the damage to these sites and will be watching how these ritual leaders handle this issue. They will be upset, firstly that the Kajirraung men allowed the damage to occur, and secondly, that the people who did this damage might get away with it. Apart from this, people are frightened of the spiritual and social sanctions that may arise as a consequence of the cut lines and drilling on and near these sites……”(p.18)
“The traditional landowners, the Kajirraung can reveal an intimate knowledge of the area and the mythological/ritual sites located therein. Even though members of this landowning group now reside in Kununurra and elsewhere, their affinity with that land is very strong as is the continuation of their traditions…….The Company has unwittingly damaged at least one Aboriginal site in the area and has come very close to at least two others. It remains unanswered as to why the Company was not better advised to comply with the Aboriginal Heritage Act 1972-80 and to liaise effectively with local Aboriginal people to ensure that Aboriginal sites were protected during the course of their exploration. The Company has shown regret over all of its action and is eager to repair the damage both physically and socially.
The Aboriginal sites referred to herein are very significant to male members of the Kajirraung landowning group, custodians of the ritual and others, both in Western Australia and in the Northern Territory. Exactly what the long and short term effects of this damage has had(sic) on these people and their culture is unknown, apart from creating immediate extreme moral pressures on particular individuals within the aforementioned groups, and making them duty-bound to take some action to appease their people, their land and their law.”(p.20-21)
In paragraph 18 of the substituted contentions, it is contended that the act of ‘looking after country” described by Kim Aldus at paragraph 12 of his affidavit is properly understood by reference to the findings of fact made by Lee J. in Ward v. Western Australia (1998) 159 ALR 483 at 529.10,539 and 542 and is a community or social activity of the native title holders which would be directly interfered with by the proposed tenement.
As Deputy President Franklyn said in Derrick Smith (at page 40):
“ Having assessed, on the evidence (including a consideration of the nature of the grant and the various statutes and regulations which may affect the exercise of the rights created), the degree of likelihood of the interference or disturbance from the grantee’s activities, the task of the Tribunal is then to determine whether that degree of interference and/or disturbance is not likely to interfere as specified in s. 237(a) or (b) or to involve major disturbance to as specified in paragraph (c).”
If there is a real chance that an act will produce a certain consequence, it cannot be said that it is not likely to produce that consequence.
The evidence adduced by the objectors does not contradict the State’s evidence that there is an Aboriginal community 5.5 kilometres east of the tenement. The area covered by the proposed tenement is not adjacent to the community as that covered by Exploration Licence 80/2473 was. Kim Aldus deposes that he has a house in that community and both he and Thelma Birch depose to going out to visit “Ningbing(i)”.
In my view, the affidavit of Kim Aldus 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 affidavit was sworn 29 November 1999 before the application for Exploration Licence 80/2473 was withdrawn by the grantee. He must therefore be taken to refer to the combined area of both applications when in paragraph 2 he refers to “this area of the map”. “The map” is not further identified which is most unfortunate. In this instance, even if I were prepared to assume that “the map” referred to is the Department of Minerals and Energy map in the State’s documents of the area covered by WC99/31 highlighting the proposed tenements E80/2473 and E80/2474, which is the only map in evidence to which this phrase could sensibly refer, his affidavit is simply not sufficiently specific to allow me to determine whether or not there are social or community activities conducted on the area of the proposed tenement which are likely to be directly interfered with.
Similarly, Thelma Birch’s affidavit, although it was sworn after the withdrawal of the application for Exploration Licence 80/2473, appears to refer to the map of the combined area of the two proposed tenements. She says (at paras 1 & 2):
“1. I am the registered native title claimant for the area where the proposed exploration licences are.
2.I have seen a map where the Company wants to work ……. .”
The objectors’ evidence was general and non-specific to the effect that the Ningbing(i) area was used for hunting and food-gathering, for camping and activities involving the teaching of traditional laws and customs to children. There is also evidence that certain ceremonies are conducted “on this country”. There is no further definition of what land the term “Ningbing(i)” or “on this country” refers to. It could for instance refer to land close to the Ningbing(i) community, which is east of the tenement, or it could refer to the whole of the area of land claimed by WC99/31. No evidence is given of the frequency of these activities or any reference given to the specific sites at which these activities are conducted or the particular importance of the area of the proposed tenement in this regard.
So far as the Report is concerned, I give little weight to it because of its unverified source, the fact that it relates to events which occurred some years ago in which the grantee had no involvement and because the evidence does not indicate where the sites which were investigated were located in relation to the proposed tenement.
At para 18 of the objectors’ substituted contentions, the objectors referred to particular findings made in Ward v Western Australia. That decision was concerned with claims made by the Miuruwung Gajerrong peoples and I note that the substituted contentions identify the latter people as “the broader community of native title holders” (at para 15). I have considered the cited passages in the judgment as background material illuminating the meaning of the words “looking after country” in the opponents’ affidavits.
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, particularly after the withdrawal of the application for the second exploration licence.
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 protection for Aboriginal areas or sites as defined in section 5 of the Act, of particular significance on the land;
(b)section 18 of the Aboriginal Heritage Act provides that the grantee party must have the consent of the Minister for Aboriginal Affairs 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 20-28) and further:
“29. 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.”
There is only one site on the Interim Register of Aboriginal Sites as disclosed in the State’s documents. It is a ceremonial and mythological site to which access is not restricted. Although the site is not specifically referred to in either of the objectors’ affidavits, its existence is consistent with evidence of performance of ceremonies and the teaching of traditional law and custom referred to in those affidavits. However, neither deponent swears specifically to any knowledge of the existence or significance of the site or sites of its kind on the proposed tenement.
On the other hand, the evidence in Thelma Birch’s affidavit at paras 4 & 7 refers to the existence of burial sites on the area of the tenements originally applied for by the grantee. In those paragraphs she deposes to the existence of burial sites and to their sanctity which is of particular significance to her and the claimant group and to a significance which is particular in the requisite sense.
I find that Thelma Birch has 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 area of the two tenements originally proposed which includes the proposed tenement.
Consequently, the issue of likelihood or otherwise of interference with any such area or site arises for determination. 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.
Section 237(c) Major Disturbance to Land or Waters
The State did not address this issue in any specific contentions.
The objectors made the following substantive contentions at paras 34-38:
“34. The objector(sic) contends that the grant of the exploration licence will result in major disturbance to the land and 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.
35. 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.
36.The Grantee Party has not contended that these rights will not be exercised fully nor adduced any evidence to that effect.
37.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.
38.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 80/2474 is an act which attracts the expedited procedure.
(signed)
(by email)
J. E. Stuckey-Clarke
Member
13 June 2001
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