Wilfred Hicks/Western Australia/Legend Mining NL
[2000] NNTTA 324
•25 September 2000
| NATIONAL NATIVE TITLE TRIBUNAL |
Wilfred Hicks/Western Australia/Legend Mining NL, [2000] NNTTA 324 (25 September 2000)
| Application No: WO99/71 |
| IN THE MATTER of the Native Title Act 1993 (Cth) |
| - and - |
| IN THE MATTER of an inquiry into an expedited procedure objection application |
| Wilfred Hicks (the Objector) |
| - and - |
| The State of Western Australia (Government party) |
| - and - |
| Legend Mining NL (grantee party) |
| REASONS FOR A DETERMINATION |
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 25 September 2000
Catchwords: Native Title – future act – expedited procedure objection application – determination on the evidence that expedited procedure attracted observation that the question of likely interference requires evidence of the existence of the thing likely to be interfered with.
Legislation:Native Title Act 1993 (Cth) s 237
BACKGROUND:
By Notice under s 29 of The Native Title Act 1993 (the Act) lodged with the Tribunal on 1 June 1999 and subsequently published, the State advised its intention to grant to Legend Mining NL (the Grantee) Exploration Licence No. E47/932 over land comprising 3.19 kms2 situate 7 kms westerly of Roebourne (the proposed tenement), the Notice stating that the State considers the grant to be an act attracting the expedited procedure. The tenement forms part of the land in respect of which the Wong-goo-tt-oo Group, of which Wilfred Hicks (the objector) is one, are the native title claimants (WC98/40). By an objection pursuant to s 32(3) of the Act, lodged on 9 August 1999, the objector objected to the inclusion of such a statement in the Notice. The objection stated, “the area may contain sites of heritage and cultural significance to Aboriginal people”. Despite the requirement of Form 4 and the provisions of s 76 of the Act, the objection does not include a statement of the likely impact of the Act on the community or social activities of the native title holders, area or sites of particular significance and any land or waters concerned. Where required by Form 4 to provide an outline of the type of evidence the objector would produce to the Tribunal, the objection states “Aboriginal, heritage type survey archaeological, anthropological report”. In its terms the objection appears to raise only the issue of s 237(b) of the Act.
The hearing of the objection application was delayed for some time because of the failure of the objector to provide to the Tribunal and serve on the other parties, as directed by the Tribunal, statements of the contentions and evidence on which he relied in support of the objection. When provided, those documents raised grounds of objection under s 237(a)(b) and (c) of the Act which, however, were accepted as being validly raised despite no objection having been lodged in respect of (a) and (c).
By consent, the matter came on for hearing in Perth on 22 March 2000, the objector’s evidence being taken by teleconference from Roebourne. At the hearing, the State relied on the documentary evidence produced to the Tribunal and served on the parties That evidence revealed (inter alia) the proposed grant to be over freehold and pastoral lease land. This was not contested.. The grantee offered no evidence and relied on that produced by the State. The objector’s contentions and evidence made no reference to the tenure of the land over which the grant was proposed. The contentions of the State and the native title parties had been lodged with the Tribunal and served prior to the decision in Ward (2000) 170 ALR 159 delivered 3 March 2000 and no submissions or evidence relevant to the effect of that decision were advanced at the hearing. Consequently, subsequent to the taking of evidence on 22 March, the Tribunal advised the parties that it would accept evidence on affidavit or by consent as to whether the relevant pastoral lease land was enclosed and/or improved and submissions as to the effect of Ward on the proceedings.
The Tribunal also requested that the State provide to it and each of the parties the date of the grant of the Pastoral Lease, particulars of the respective areas of the freehold land forming part of the proposed tenement and a map showing the locations of such tenures within the tenement. Due to the number of matters before the Tribunal requiring investigation by the State because of the decision in Ward, the State was unable to comply with that request until 23 August 2000 when it additionally advised that, on the evidence available, it was not contending the proposed tenement to be on land the subject of an enclosed Pastoral Lease and did not dispute jurisdiction. All of that information was passed on by the Tribunal to the other parties and all parties were advised that if they wished to provide any further contentions or evidential material they must do so by 8 September 2000. Nothing further was received from any party.
The State’s evidence reveals that a large portion of the proposed tenement on its eastern side is on freehold land, that there are no registered sites under the Aboriginal Heritage Act 1972 (the AHA) registered in respect of it and that no Aboriginal communities are situated on it. Further, that the Cheeditha Aboriginal Community is located about 5 kms north-east and the Ngurin Mingulla Tharndo Aboriginal Community about 5.5 kms east of the proposed tenement.
The objector, Mr Wilfred Hicks, together with Mr Kane Hicks, appeared for the native title party at the hearing. Each advised that he had nothing to add to the evidence contained in the affidavit of Wilfred Hicks, sworn 25 February 2000, lodged with the Tribunal and served on the parties. In answer to a question from the Presiding Member, Mr Kane Hicks advised that the Cheeditha and the Ngurin Mingulla Tharndo groups were separate from claimant group and had “no bearing on the land”. Mr Wilfred Hicks confirmed that to be so and that the objector was happy to rely on the papers before the Tribunal.
THE OBJECTOR’S EVIDENCE:
Mr Wilfred Hicks, by affidavit sworn 25 February 2000, deposed as follows:
“…
I am the Objector in this matter and a named claimant of the Wong-goo-tt-oo Group in the proceedings before the Federal Court. I instructed my solicitors to lodge this objection on behalf of the Wong-goo-tt-oo Group as a whole.
The area of the proposed tenement is very important to aboriginal people as there are a number of significant areas and sites on, or in the vicinity of, the proposed tenement.
Members of the Wong-goo-tt-oo Group, and aboriginal people in general, use the area for hunting traditional bush foods such as kangaroos, snakes and goannas. Although group members do not enter upon the land every day for hunting purposes, it is still a very important area which is often used for hunting.
As this area is an important hunting ground, I believe it is highly likely that there are stone scatters in the area of the proposed tenement. By stone scatters I mean stones broken to get a sharp jagged edge for bush weapons.
There is also a traditional camping spot for aboriginal people in the area but I will not provide any non-aboriginal person with its exact location as this makes it far too easy for people who do not understand the deep spiritual meaning of such places to enter upon the land and to treat the site in a manner which they should not.
I am unaware of the intentions of the grantee party in relation to the proposed tenement. I instructed my solicitors to write to the grantee party to find out their intentions in this regard but am informed by my solicitor, Mr Gian Barritt, that no response has been received to the letter sent on 21 September 1999. I also understand from Mr Barritt that he attempted to call the person representing the grantee party on 31 January 2000 but that no response to this phone call was received by my solicitors. In late January 2000, I attempted to call the grantee party but was told they would call me back. To date, I have received no reply.
I am extremely worried about what may happen to our land if the grantee party does not consult us before commencing work in the area.
I swear this affidavit in opposition to the application of the expedited procedure.”
In this inquiry, the Tribunal is concerned with evidence relevant to the provisions of s 237 of the Act, which provides:
“237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) 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 (disregarding any trust created under Division 6 or Part 2) 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.”
Mr Hicks’ affidavit evidence in paragraphs 2, 3, 4 and 5 is not specific to the area of the proposed tenement. As I read it, the word “area” is used therein to describe the larger area of which the proposed tenement forms part. His oral testimony in cross-examination, to which I later refer, confirms the correctness of that conclusion. His evidence makes no distinction between the pastoral lease land and the freehold land the subject of the proposed tenement. The freehold land is excluded from the jurisdiction of this inquiry, native title over it having been extinguished (Fejo (H.C.) 1998 156 ALR 721). The assertion in his affidavit that there are a number of significant areas and sites “on or in the vicinity of the proposed tenement” is insufficient to establish the existence on the proposed tenement of a site or area of “particular significance” for the purposes of s 237(b). The question posed by that sub-section requires there to be evidence of the existence of such an area or site on the proposed tenement and/or in such proximity to it as to raise a real chance that mining operations which may be carried out pursuant to the grant will interfere with it. Evidence sufficient to raise the question of the real chance of interference is not found in broad assertions of the existence of sites or areas of particular significance in the general area or an assertion that such a site or area may exist on the land the subject of the proposed grant. The latter assertion, even by affidavit, without more is mere speculation as to the existence of a relevant area or site on the relevant land. In my opinion, a consideration of the question whether a proposed act is likely or not likely to interfere with something requires evidence to show that the something exists and therefore is capable of being interfered with by the proposed act. It is also of some importance that Mr Hicks’ affidavit does not refer to areas or sites of “particular significance in accordance with their traditions” to the native title holders. The mere belief of the deponent, no matter how strongly held, that it is highly likely that there are stone scatters in the area of the proposed tenement is not evidence that that is the fact. Further, accepting the evidence that the general area is an important hunting ground, one would assume that the users of it for that purpose would know whether or not such stone scatters, as a fact, exist on the relevant land. That the expressed belief in the likelihood that they do exist is founded on the fact that the area is an important hunting ground, itself suggests, strongly, that such scatters would exist generally or in many places throughout the hunting ground. Consequently, without more, the fact of their existence on the proposed tenement, were there evidence to support that to be the so, would not be such as to constitute the relevant land a site or area of “particular significance”. Nor can I conclude from paragraph 5 of the affidavit that the traditional camping spot is situate on or in any particular proximity to the land the subject of the tenement. I do accept however that the affidavit provides evidence that the general area, including the land the subject of the proposed tenement, is used for hunting as is deposed in paragraph 3.
Leave was given for Mr Wilfred Hicks to be cross-examined on the evidence contained in his affidavit. He testified that he goes hunting whenever he has time to do so for kangaroo, goanna, turkey and emu, using a gun. He hunts all over Mt Welcome Station (on which the proposed tenement is situate) and on Andover, “Churdurda” (according to the transcript, but probably, from his subsequent evidence, properly called “Cherita”) and Karratha Stations. Roebourne, he said, is “Mt Welcome”. The maps in evidence make clear that Mt Welcome Pastoral Lease touches on the border of the township of Roebourne and covers a very extensive area of land of which the proposed tenement forms only a very small part. The map also reveals that there are a number of other mining tenements on the pastoral lease. No reference to those mining tenements was made by the witness. He testified that Andover Station is some 15 kms south of Roebourne and that both Andover and Cherita are part of “Mt Welcome Pastoral”, an apparent reference to the business name of Mt Welcome Station. Karratha Station, he said, is 35 kms from Roebourne, the map in evidence showing it to lie in a westerly direction from the town. He deposed that when he wanted kangaroo meat for food he would go to the manager of Karratha Station and get permission to go towards the west camp on Karratha property, that he always go to Karratha Station and lets them know when he goes out hunting and that whenever he needs aboriginal food he goes out looking for it. He goes to Karratha Station, hunting, possibly “short of two weeks or so”, depending on his work, because he loves getting fresh meat and goanna, emus and turkeys. He also goes hunting on Warramby Station, but says it is more difficult because of locked gates and the need to see “Wayne”. He said he has not visited there for the last 12 months because his cousin passed away “off that station”. He also goes hunting out to Whim Creek and down to Millstream. He said that other people go shooting on Mt Welcome, a lot of whom shoot there for fun, whilst he goes for meat. When out shooting he sees other people around and if he knows there are cars or people in a particular area, he hunts in another area. Other members of the Woo-goo-tt-oo Group also go hunting on the same different pastoral stations as he does. He testified that he has been involved in Aboriginal heritage surveys, in the course of which he has been able to identify archaeological sites. The transcript of his evidence then proceeds:
“And you have found many archaeological sites in the course of doing surveys? – No.
Sorry, you said you have? – Yes.” Asked to identify the location of the traditional camping site referred to in paragraph 5 of his affidavit, Mr Hicks’ evidence was that it is at “Mines Well”, away from the Well, about 500 m south towards the creek which runs alongside “Mines windmill” in an east-west direction. In answer to a question from the Tribunal, he said that Mines windmill and the camping ground are both on the proposed tenement. Leave was given to the State’s counsel to cross-examine further on that evidence. Counsel referred the witness to the map, lodged with its documents for the purpose of these proceedings by the State, which shows against a windmill symbol a short distance to the east of the tenement, the words “Mine W”. Without going further into the cross-examination, the witness ultimately agreed that the Well he was talking of was that marked on the map “Mine W” referred to by counsel. Asked questions then about the location of the camping ground in relation to the Well, he conceded that he was not an expert in map reading and has a “bit of a guess” when he looks at this sort of map”. He said he drove around the area before he put in his affidavit and it looked to him as if the camping area was in the tenement area. He thought the Well was on the tenement area because of where he thought the tenement boundaries were. He gave no evidence of how he identified what he thought were the tenement boundaries and complained that mining companies would not come to the site to “show us where these mining tenements they want”. Asked why he thought the Well was on the tenement area, he said he had another person, Eddy Ramirez, with him “and between the two of us, we said, ‘well, it looks like we are in the tenement area’”. He then added “It could be either way”. It is not in dispute that the boundaries of the tenement were not marked and were fixed by global positioning. Asked whether he wished to say anything further in relation to questions asked of him, Mr Hicks said, at the close of his evidence, “Yeah, with no peg and we don’t know where you are talking about clearly”. He also said “I’m not here objecting to stop them from mining. I’m only objecting to my - where my Elder is buried and where the …….. are and that is why I am very careful of my land”. There was no evidence, and it was not suggested or contended, that there is or even might be a burial site on the land the subject of the proposed tenement. The statement however has some relevance to the issues raised by s 237(c) of the Act. Subsequently, rising out of submissions by counsel for the State as to the effect of Mr Hicks’ evidence, the Tribunal summarised its understanding of that evidence as follows, then putting it to Mr Hicks to confirm the correctness of the summary. I quote from the transcript at page 19. “In effect Mr Hicks’ evidence reduces itself to this, that he does not claim to have clearly identified the boundaries of the prospecting area. He identifies the Well which he believed was on the tenement area – which he believed was on the tenement area, and the camping ground to which he referred is some 500 m south, possibly south-west of that. But that he could not say it was on the tenement area. I think that is a fair summary of your evidence Mr Hicks, is it not?”. To this Mr Hicks replied “Yeah”.
FINDINGS OF FACT
I find that the only evidence of community or social activities of the holders of native title in respect of the land the subject of the proposed tenement is that of hunting, which activity is carried out over an extensive area embracing Mt Welcome, Andover, Cherita, Warramby and Karratha stations, Millstream and Whim Creek. Any hunting on the 3.19 kms2 of the proposed tenement is but a minimal part of that activity. Judging from the map produced by the State, the freehold land occupies about one-quarter of the tenement area and so relevantly the activity is to be considered over the remaining area only. The evidence suggests that the primary hunting area is at Karratha Station. On the evidence, I am satisfied that the loss of the relatively small area comprising pastoral lease land the subject of the proposed tenement is not likely to interfere directly with the native title holders’ activity of hunting. I further find that there is no evidence of any area or site of particular significance, in accordance with their tradition, to the holders of native title in relation to the land the subject of the proposed tenement. It is quite clear that the exercise of the rights conferred by the proposed Exploration Licence will involved some disturbance to the land. However, having regard to the location and area of the land involved, and to the evidence relating to the use to which it is put by the holders of native title, I am satisfied there is no real chance that the exercise of those rights is likely to involve ‘major disturbance’, as that term is defined by the full Federal Court in Dann v Western Australia 1997 74 FCR 391 or to create rights of the nature identified in s 237(c). That conclusion is further supported by the evidence of Mr Wilfred Hicks that “I am not here objecting to stop them from mining”.
Determination
The determination of the Tribunal is that the Grant of Exploration Licence E47/932 is an act attracting the expedited procedure.
E M Franklyn QC
Deputy President
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