Young v Western Australia

[2001] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd, [2001] NNTTA 42 (7 June 2001)

Application No:  WO00/402

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

Maureen Young on behalf of the Ngadju People (native title party)

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The State of Western Australia (Government party)

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South Coast Metals Pty Ltd (Grantee party)

REASONS FOR A DETERMINATION

Tribunal:           Mr John Sosso (Member)
Place:               Queensland
Date:                 7 June 2001

Catchwords:        Native Title – future act – proposed grant of exploration licence – expedited procedure objection application – proposed grant found not to attract the expedited procedure – objection upheld.

Legislation:Native Title Act 1993 (Cth) s 237, Aboriginal Heritage Act 1972, Mining Act 1978 (WA),

Cases:Bropho v Western Australia [1989] WAR 87

Re Irruntyju-Papulankutja Community (1995) 1 AILR 222

Re Waljen(1995) 1 AILR 227 Re Smith (1995) 128 FLR 300

Re Miriuwong and Gajerrong Peoples (1996) 128 FLR 90

Ben Ward & Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd, WO95/34, unreported, Member Sumner, 29 February 1996

Raymond Wallaby & Ors on behalf of the Purnululu People/Western Australia/Andrew Drummond and Associates Pty Ltd, WO95/35, unreported, Member Wilson, 29 April 1996

Ward v Western Australia (1996) 69 FCR 208

Ngaluma and Injibandi People/Western Australia, WO96/17, unreported, Member Wilson, 26 July, 1996

Western Australia v Ward (1996) 70 FCR 265

Cheinmora v Striker Resources NL (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Western Australia/Winnie McHenry, WO98/125, unreported, Deputy President Franklyn, 28 July, 1999
Western Australia/Derrick Smith & Ors on behalf of the Gnalla Karla Boodja People/South Coast Metals, WO99/511, unreported, Deputy President Franklyn, 23 June, 2000

Smith v Western Australia [2001] FCA 19

Roy Dixon on behalf of the Garawa and Gundanji People & Ors/Ashton Mining Limited/Northern Territory, DO 00/1 -DO 00/7, unreported, Deputy President Franklyn, 23 April, 2001

Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group and Maureen Young on behalf of the Ngadju People/Western Australia/Zeedam Enterprises, WO00/ 381 & 400, unreported, Member Sosso, 4 May, 2001

WO00/402

Background

[1] On 28 June 2000 the State of Western Australia (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant exploration licence 63/738 (“the proposed tenement”) to South Coast Metals Pty Ltd (“the grantee”). The notice included a statement that it considered the grant attracted the expedited procedure under the Act. The notice also explained that the grant of an exploration licence would authorise an applicant to explore for minerals for a term of five years.

[2] A Form 4 (Objection to inclusion in an expedited procedure application) was lodged by Maureen Young on behalf of the Ngadju People, which Form was dated 24 October, 2000.

[3] Paragraph 7 of Form 4 requires objectors to include a statement why the proposed act is not an act attracting the expedited procedure, including a statement of the likely impact of the act on the community or social activity of native title holders, areas or sites of particular significance and any land or waters concerned.

The following statement was outlined in paragraph 7:

“The objector believes that the proposed grant is not an act attracting the expedited procedure because it:-

a.   will directly interfere with the carrying on of the community and social activities of the native title claimants;

b.   will interfere with areas or sites of particular significance to the native title claimants;

c.   will involve major disturbance to the land and waters concerned.”

[4] Paragraph 8 of Form 4 further requires objectors to outline the type of evidence that will be produced to the Tribunal. In this instance the objector responded as follows:

“ The claimants can produce direct and other admissible evidence in support of this objection.

The claimants can give oral evidence of the cultural significance of the area, and this can be supported by the oral evidence of anthropologists and by other documentary evidence.  The claimants can give oral evidence of their personal activities and knowledge in respect of the area and communal histories; they are also able to give evidence of having exercised native title rights and interests on claim land and of the impact of the proposed act on their community and social activities.

This oral evidence can be supported by documents detailing previous incidents of ‘major disturbance’ resulting from activities like those proposed on the mining tenements.”

[5] I interpose here by noting that neither the government party nor the grantee raised any objection to the issue of compliance with Form 4 by the objector. As such there is no need to canvass the issues highlighted by Deputy President Franklyn in Roy Dixon on behalf of the Garawa and Gundanji People & Ors/Ashton Mining Limited/Northern Territory of Australia DO 00/1-DO 00/7, 23 April, 2001 (“Roy Dixon”). In Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group and Maureen Young on behalf of the Ngadju People/State of Western Australia/Zeedam Enterprises WO00/381 and WO00/400, 4 May 2001, I highlighted the potential importance of Roy Dixon to expedited procedure objections in Western Australia.

In this matter the objector has simply paraphrased section 237 in an endeavour to comply with the requirements of paragraph 7 of Form 4. The observations of Deputy President Franklyn in Roy Dixon as to whether this would amount to sufficient compliance (paragraph 18) should be carefully perused by potential objectors.

Conversely the objector has set out in paragraph 8 of Form 4 an outline of the type of evidence which ostensibly meets the requirement of the Act. The plain wording of paragraph 8 makes it clear that the framers of the Regulations did not intend to impose onerous and unduly technical requirements on objectors at the outset which raise barriers to the substance of an objection being dealt with by the Tribunal.

[6] On 17 November, 2000 the government party and the grantee were notified of the objection, and at a preliminary conference held on 6 December, 2000 Deputy President Sumner issued Directions for the conduct of these proceedings.  Those Directions were subsequently varied, with the consent of the parties, and all parties have complied with the amended Directions.

[7] All parties requested that the proceedings be dealt with “on the papers” without the holding of a hearing.  The Tribunal is permitted to make a determination without holding a hearing, by considering the documents or other material provided. However, the Tribunal must hold a hearing: “if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.” – s.152(2)
Paragraph 27.10 of the Explanatory Memorandum circulated with the Native Title Amendment Bill 1997 outlines the rationale for dealing with matters “on the papers” as follows:

“The process for a determination without a formal hearing is likely to be used more readily in future years where a number of key issues have already been determined, such as when there has been a determination of native title in relation to the area and perhaps a right to negotiate process and arbitration in relation to an earlier section 29 notification. In these circumstances, and where there are no additional factors to take into account, it could be more efficient for the NNTT to make the determination without hearing the parties in person. There may be many other circumstances where a formal hearing is unnecessary in order for the NNTT to deal with an issue.”

[8] In this matter I am satisfied that the material lodged with the Tribunal is sufficient to allow a determination to be made “on the papers”.

[9] The government party lodged with the Tribunal and served on the other parties a statement of its contentions and a copy of the documents on which it relies. In addition the government party specifically re-iterated the submissions made by it on the interpretation of section 237 in Derrick Smith on behalf of the Gnaala Karla Booja People/State of Western Australia/South Coast Metals Pty Ltd, WO99/511 (“Derrick Smith”) and Wilma Freddie/State of Western Australia/Kim Robinson, WO99/285.

[10] On 12 February, 2001 the native title party lodged a statement of contentions, together with an Affidavit of John Graham dated 9 February, 2001. Mr Graham is one of the applicants in WC99/2 – WG 6020/98, which applicant was registered on 28 September 2000. Subsequently the native title party lodged its submissions on the interpretation of section 237 (dated 28 February, 2001) and an Affidavit of Maureen Young (dated 23 April, 2001) who is, like Mr Graham, an applicant in WC99/2.

[11] The grantee indicated that it would rely on the government party’s contentions and did not lodge with the Tribunal any additional documents.

[12] The material lodged by the government party indicates that the proposed exploration licence (63/738) is for an area of some 63.93 square kilometres (6393.18 ha), some 87 km west of Norseman, wholly in the Shire of Dundas. The area of land over which the proposed tenement is expressed to operate is comprised of unallocated Crown land.

[13] The Director of the Mineral Titles Division of the Department of Minerals and Energy lodged with the Tribunal documents indicating that there are no Aboriginal communities within the vicinity of the proposed tenement.

[14] The Register of Aboriginal Sites records one Aboriginal site in the area of the proposed tenement.  The Aboriginal site comprises the area of Lake Johnston.  The site in question is Number 17711, which has permanent status.  It is not restricted and is classed as “mythological”. It would appear to be referred to as “Maggie Hays”.

[15] The western portion of the proposed tenement overlaps a significant portion of the eastern portion of Lake Johnston.  The overlap is in the vicinity of 3 km in length and between 3.5 and 5.5 km in breadth.  In addition, maps I have perused indicate that there are no roads which traverse any part of the proposed tenement.  This is consistent with the evidence supplied by Mr Graham (Affidavit paragraph 8).

Interpretation of section 237 – General Principles

[16] As indicated, both the government and native title party submitted material on the proper interpretation of section 237. Section 237 provides as follows:

“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 holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)   the act is not likely to involve any 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.”

[17] Both parties agreed that the section requires a predictive assessment, and this matter has been put beyond doubt by French J in Smith v Western Australia [2001] FCA 19. His Honour said: “It was submitted that the amendment to s237 reflected a legislative intention to require a predictive assessment of the effects of the proposed future act in accordance with the approach taken by Carr J in the Ward case….In my opinion that it is the plain intention behind the amendments to s237 and that intention is effected by the language that has been used.  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 s237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement.” (para 23)

[18] A further issue is whether, in determining the likelihood of interference or disturbance, the intention of the grantee party is relevant.  The government party contended that it was not relevant, and instead the Tribunal must necessarily focus its attention on the exercise of the rights conferred by the proposed mining tenement.

[19] In Re Inrruntyju-Papulankutja Community (1995) 1 AILR 222, Deputy President Seaman said (at 224): “I am of the view that, absent exceptional circumstances, the effect which the grant is likely to have is not to be judged by a consideration of the intentions and capacities of particular grantee parties but by the power of the government party to control the activities of a grantee party by existing legislation, conditions of grant and regulatory process and upon the basis that the grantee parties will act lawfully.” (p.6)

[20] While the views of Deputy President Seaman remain, in my opinion, of ongoing applicability, I nevertheless do not hold the opinion that the intention of a grantee party must always be rejected as being irrelevant to a predictive assessment. Instead I think that the correct approach was outlined by Deputy President Franklyn in State of Western Australia/Derrick Smith & Others on behalf of the Gnalla Karla Boodja People/South Coast Metals WO99/511, 23 June, 2000 where he said (at pp38-39): “The fact that the Grantee in this case expresses his present intention as to the exercise of the rights gives rise to the likelihood that those rights will be exercised as a minimum to the intended extent but dependent on the results of the progressive exploration steps.  Further there may well be cases where the overall evidence gives rise to the likelihood that the expressed intentions will in fact be carried out.  The degree of likelihood in each case will vary with the circumstances as will the weight to be given to the evidence of intention.  It is probable that in many, if not most cases, the weight given will be negligible, if any is given at all.  That however does not mean that evidence of intention should always be ignored.  Logically it is relevant to ‘likelihood’.  For those reasons I am of the view that evidence of the Grantee’s intentions as to the exercise of the rights created by the grant is admissible but the weight (if any) to be given to that evidence will vary with the circumstances as the Tribunal finds them to be.”

[21] Accordingly while evidence of intention may be relevant to a predictive assessment, the weight given to it would, in most circumstances, be negligible.  However, the utility of such evidence may vary according to the circumstances and should not be discounted in advance.

[22] The third issue raised by the parties in the interpretation of section 237 concerned the approach to the term “likely”. Since Smith v Western Australia [2001] FCA 19, this question has been answered clearly by the Federal Court. In that case French J pointed out that the Act is beneficial and that the right to negotiate regime is an element of the overall statutory scheme for the protection of native title rights and interests. The protection afforded by the Act is not to be construed narrowly. His Honour said (at para 23):

“The term ‘likely’ in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such a judgment would potentially permit, without the benefit of any negotiation, quite significant risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction a forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep it 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.”

Section 237(a) – Interference with community or social activities

[23] The government party 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 because:

(a)there are no Aboriginal communities situated on, or in the vicinity of, the proposed tenement; and

(b)section 63 of the Mining Act 1978 (WA) deems every tenement of the type proposed to be granted subject to the holder fulfilling conditions outlined in that section (reporting discoveries of minerals, making safe any holes, pits, trenches, preventing damage to property and livestock).

-Statement of Contentions dated 12 December, 2000 at paragraph 4.

[24] The native title party’s statement of contentions contained the following matters:

“2. Pursuant to traditional Aboriginal Law and Custom the country forms part of the cultural landscape from which Aboriginal people draw their identities and intersects with story lines and dreaming tracks, knowledge of which is passed through generations of Aboriginal People with traditional connection to that country.

3. Any potential ground disturbance of that country may interfere with the dreaming stories of that cultural landscape thus interfering with the capacity of present and future generations of Aboriginal people to interpret those stories.  This militates against those persons being able to freely determine the social activities and cultural arrangements from which they draw their identity and thus find meaning in their lives.

4. Ground disturbance also disrupts native wildlife, thus interfering with the ability of Aboriginal people to go hunting.”

-Statement of Contentions dated 12 February, 2001.

[25] Mr Graham, in his Affidavit, claimed that the area of the proposed tenement was relatively undisturbed and is a good place to hunt kangaroos, and was so used by the Ngadju People.  He deposed that he went hunting there a couple of times a year, travelling partly by car and the rest by foot.  Concern was expressed that the presence of exploration and associated equipment could scare away kangaroos making the area unsuitable for hunting – Affidavit of John Graham at paras 6-8.

[26] Maureen Young in her Affidavit also made reference to the importance of the area of the proposed tenement for camping and hunting.  She deposed (at para 7): “The Ngadju people have, and continue to utilise the area for hunting and food gathering.  On the subject land there is also a major camping and hunting ground, a cooking ground, a meeting place, a gathering place as well as a walking trail.  In relation to the hunting ground, the presence of exploration activities will scare away kangaroos and decrease the suitability of the subject land for hunting.  Further, if more tenements are granted, the more unsuitable the area will become for hunting.”

[27] I accept that the area of the proposed tenement is used by Aboriginal People for traditional hunting, gathering, cooking and meeting purposes. However, the issue to be determined is whether the factual circumstances disclosed give rise to any likelihood of relevant interference within the meaning of section 237(a).

[28] In Smith v Western Australia [2001] FCA 19, French J, when discussing the proper interpretation of paragraph (a) pointed out that the criterion of direct interference is functional. It entails an evaluative judgment, and does not require a precise and semantically correct cause and effect analysis in every case. He said (at para 26): “The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference.”  In addition the interference “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.”

[29] On the material before me it would appear that the area is not used for traditional purposes repeatedly and intensively.  Mr Graham’s Affidavit indicates that he uses the area for hunting “at least a couple of times a year”.  There is no indication in Maureen Young’s Affidavit as to how many people access the area of the tenement for traditional purposes, the frequency of the access or other material on which a view could be formed about the nature of the community or social activities that may be interfered with.

[30] The area of the proposed tenement is 63.93 square kilometres.  Its length is between 17.5 and 19 km and its breadth is between 2 and 5.5km.  In short it comprises a substantial area.  It is not a small area where the introduction of persons engaging in mining exploration activities would be likely to have a substantial impact on native fauna and flora, and generally interfere with the traditional activities outlined above.  The situation could well be different if the area of the proposed tenement was smaller, its use by Aboriginal People more intensive and the risk posed by exploration activities greater.

[31] In this matter I have to consider relatively scant material which does not suggest that the activity flowing from the granting of the proposed tenement would be likely to have a substantial impact upon community or social activities. It is likely that the activity that will flow from the granting of the proposed tenement will have some effect on the social and community activities of the native title party. However in evaluating the likelihood of the class of consequence that may flow from the granting of the tenement, I have formed the view, on the material submitted, that there is not a real chance or risk that the social and community activities of native title holders will be directly interfered with.

Section 237(b) – Sites of particular significance

[32] The government party contended that the grant of the proposed tenement would not be likely to infringe section 237(b) because:

(a)   the Aboriginal Heritage Act 1972 applies to the land, and provides protection for Aboriginal areas or sites as defined in section 5;

(b) section 18 of the Aboriginal Heritage Act 1972 provides that Ministerial approval is required before a grantee could use the land for a purpose that otherwise would be in breach of section 17 (the excavation, destruction, damaging, concealment or alteration of an Aboriginal site or an object on or under a site); and

(c)   the grant of the proposed tenement will have an endorsement drawing the grantee’s attention to the provisions of the Aboriginal Heritage Act 1972.

[33] The objector contended that the grant of the proposed tenement would be likely to interfere with areas or sites of particular significance. John Graham deposed as follows:

“The whole area is also of particular significance in that it contains sacred and other sites of significance, including the dreaming site on Lake Johnston, which extends into a substantial part of the tenement area.  These sites are associated with ceremonies and other aspects of Aboriginal customary law.  Although the Lake Johnston dreaming site has been located and registered, some other sites may not have been located, as some Ngadju people with the relevant knowledge have passed away without having had the opportunity to share the knowledge on country.  However, their descendants, with their knowledge of the area, are able to recognise the description and signs that would indicate the existence of these sites. It is important that these sites be identified, recorded and preserved for future generations.”

Paragraph 9, Affidavit of John Graham dated 9 February, 2001

[34] The Affidavit of Maureen Young contains in almost the same words the last four sentences of the above quotation.  However, she also deposed as follows:

“There are dreaming sites and tracks on the subject land.  One of the large dreaming tracks is near Yackaminda. A dreaming site is also located at Lake Johnston, which extends into a substantial part of the tenement area.”

Paragraph 8, Affidavit of Maureen Young dated 23 April, 2001

[35] The first point to note is that paragraph (b) refers to areas or sites of particular significance.  The proper interpretation of what constitutes an area or site of particular significance was given by Carr J in Cheinmora v Striker Resources NL (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 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 subsection) 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’ out.  The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the 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.”

Accordingly for paragraph (b) to apply, the area or site in contention must be of special or more than ordinary significance to native title holders.

[36] One issue, which arises, is whether the registration of a site under the Aboriginal Heritage Act 1972 would of itself meet the test of “significance” required by paragraph (b).  It is clear from a reading of sections 5 and 6 of this legislation that its applicability to places and objects is understandably of wide compass.  In the context of “places”, section 5(a) in fact refers to “any place of importance and significance”. However the scope of the legislation is not restricted to such places.

[36] In State of Western Australia/Winnie McHenry, WO98/125, 28 July 1999 Deputy President Franklyn said: “That there are sites registered under the Aboriginal Heritage Act 1972 does not lead to the conclusion that they are of ‘particular significance’ to such persons or the objectors.”  Indeed this assumption has underlined a number of previous determinations by the Tribunal.  This is undoubtedly correct.  The criteria for the activation of the provisions of the Aboriginal Heritage Act 1972 are different in many respects to the test of “particular significance” under section 237(b). Whilst in many instances a place or site that sections 5 or 6 applies to would be of ongoing significance to native title holders (however compare s6(2)), that of itself would not meet the test of “particular” significance mandated by the Parliament. Moreover both sections cover places and objects which were of significance to Aboriginal People, even though they may no longer be - sections 5(c) and 6(1).

[37] Deputy President Franklyn also suggested in State of Western Australia/Winnie McHenry that the area or site must be capable of identification and its significance established.

[38] There is no doubt that an area or site would have to be identified.  A bald assertion in the abstract about a supposed area or site of particular significance without any factual evidence of the location or significance of that area or site would not suffice.  However, in this instance the fact of registration under the Aboriginal Heritage Act 1972 of itself meets the requirement of identification.  Moreover Deputy President Franklyn placed significance in reaching his determination on the details revealed in the site report.  In my opinion, in determining if a site is of significance, weight can be placed not just on the material adduced by the objectors on the issue of significance but on the status of the area or site as recorded in the site report.

[39] It is of relevance that the government party did not contend that there were no sites or areas of particular significance.  Indeed paragraph 5 of the government party’s Statement of Contentions adduces reasons why “the grant of the proposed tenement is not likely to interfere with areas or sites of significance”.  Whilst this was submitted prior to the objector’s evidence being adduced, the government party at no stage has contended that Site 17711 is not a site or area of particular significance.  Instead the gravimen of the government party’s contention is that the protection afforded by the Aboriginal Heritage Act 1972 renders it unlikely that any site or area of particular significance will be interfered with.

[40] There is no doubt that the material adduced by the objectors is very brief.  Whilst accepting the various difficulties faced by objectors it is less than satisfactory that an expedited procedure inquiry is supplied with material that is at times cursory and less than helpful.

[41] Nevertheless, despite the relative paucity of material that has been supplied, it is clear that Lake Johnston is recorded on the Register of Aboriginal Sites.  It is placed on the permanent register, and not just on the interim register.  The register indicates that it is “Reliable”, and that it is a mythological site.  This compares, for example, with the site considered by Deputy President Franklyn in State of Western Australia/Winnie McHenry whose significance was registered as “uncertain”, and which status was regarded by Deputy President Franklyn as of “significance” in coming to his conclusion.

[42] I note that both John Graham and Maureen Young refer to the dreaming site on Lake Johnston, and stress the importance of the site to native title holders.  All in all, having regard to the above considerations, I have come to the conclusion, albeit with not a little difficulty, that the registered site is in fact a site of particular significance, in accordance with the traditions of the relevant native title holders.

[43] The next issue concerns the contentions of the government party, that the various protections afforded by the Aboriginal Heritage Act 1972 are sufficient to render it unlikely that the granting of the proposed tenement will result in interference to areas or sites of significance. In this regard, I accept that the Aboriginal Heritage Act 1972 applies to all places and sites described in section 5 wherever they may be situated in Western Australia, and includes places and sites situated on vacant Crown land – see Bropho v Western Australia [1989] WAR 87.

[44] The Preamble to the Aboriginal Heritage Act 1972 reads as follows: “An Act to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants, or associated therewith, and for purposes incidental thereto.”  As previously noted, sections 5 and 6 ensure that the protection afforded applies to certain places and objects.  Of importance in the context of this matter are paragraphs (a) and (b) of section 5:

“This Act applies to –

(a)   any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Australian people, past or present;

(b)   any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent.”

[45] Section 37 enables the appointment of a Registrar of Aboriginal Sites, and section 38 requires the Registrar to maintain a register of all protected areas, Aboriginal cultural material and all places and objects to which the legislation applies.  In Re Smith (1995) 128 FLR 300 Deputy President Sumner made the following observations about the register (at 314):

“There is a Register of recorded sites which can be accessed through the Permanent Register Index or an Interim Register Index. There are approximately 14,500 sites on the Register. The Interim Register comprises information reported to the Aboriginal Affairs Department of all places of known or possible Aboriginal heritage which have not been evaluated by the Aboriginal Cultural Material Committee which is set up to assist the Minister in the administration of the Act. Sites recorded on the Permanent Register have been so evaluated.”

[46] As Deputy President Sumner pointed out, the legislation provides for an advisory body known as the “Aboriginal Cultural Material Committee” – s.28. Section 39, which outlines the functions of the Committee, deserves full quotation:

(1) “The functions of the Committee are –

(a)to evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons;

(b)where appropriate, to record and preserve the traditional Aboriginal lore related to such places and objects;

(c)to recommend to the Minister places and objects which, in the opinion of the Committee, are, or have been, of special significance to persons of Aboriginal descent and should be preserved, acquired and managed by the Minister;

(d)deleted;

(e)to advise the Minister on any question referred to the Committee, and generally on any matter related to the objects and purposes of this Act;

(ea)     to perform the functions allocated to the Committee by this Act; and

(f)to advise the Minister when requested to do so as to the apportionment and application of moneys available for the administration of this Act.

(2) In evaluating the importance of places and objects the Committee shall have regard to –

(a)any existing use or significance attributed under relevant Aboriginal custom;

(b)any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;

(c)any potential anthropological, archaeological or ethnographic interest; and

(d)aesthetic values.

(3) Associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place or object for the purposes of this Act.

[47] Sections 19 and 20 enable the Committee to recommend that localities or sites be declared for protection purposes, either on a temporary basis (s.20) or permanently (s.19).  Provisions are made for objections to be made to such declarations (s.21) and for compensation to persons whose interests are prejudicially affected by the operation of such a declaration (s.22).  The Registrar is empowered to mark a protected area, with suitable notices or boundary marks, or even to enclose or fence all or part of the area (or erect other structures) to protect the area or any object in that area. A person who destroys, moves etc a boundary mark, fence etc commits an offence – s.23.

[48] Section 17 makes in at offence for a person, unless authorised, to excavate, destroy, damage, conceal alter etc an Aboriginal site or any object on or under a site. Section 16 allows the excavation or removal of a thing from a site if authorised by the Registrar (on the advice of the Committee). Section 18 allows the holder of a mining tenement to gain Ministerial consent for activity which would otherwise be in breach of section 17. The holder of the mining tenement must give notice to the Committee, and the Committee is required to form an opinion “as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing whether the Minister should consent to the use of the land for that purpose, and where applicable, the extent to which and the conditions upon which his consent should be given” –s.18(2). The Minister is not bound by the recommendation, and is empowered to either consent or refuse consent to the use of the land in the manner requested by the holder of the mining tenement having regard “to the general interest of the community”. s.18(3)

[49] In Re Smith (1995) 128 FLR 300 Deputy President Sumner pointed out (at 314) that in the four years up to December 1995, the Aboriginal Cultural Material Committee had dealt with approximately 50 s.18 notices each year, of which approximately 35% related to mining activity.

[50] One provision in the legislation of relevance is section 62, which provides: “In proceedings for an offence against this Act it is a defence for the person charged to prove that he did not know and could not reasonably be expected to have known, that the place or object to which the charge relates was a place or object to which this Act applies.”  As the government party pointed out in its contentions, the grant of the proposed tenement will have an endorsement drawing the grantee’s attention to the provisions of the legislation.  Consequently, the grantee would not be able to rely on the defence of lack of knowledge afforded by section 62.

[51] In previous inquiries the Tribunal has been presented with evidence of a document entitled “Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers”. A copy of the Guidelines current at that point of time was annexed by Deputy President Seaman to his determination in the matter of Re Waljen People (1995) 1 AILR 227.  The potential importance of these guidelines was made clear by Deputy President Seaman as follows (at 231):

“On the grant of an exploration licence each of the grantee parties would receive a document entitled “Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers…The document contains a reasonable statement of the provisions of the Aboriginal Heritage Act 1972. In particular there is reference to s5(b) which includes within the definition of ‘Aboriginal site’ ‘any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent’, to s17 which provides that any person who excavates, destroys, damages, conceals or in any way alters an Aboriginal site commits an offence unless he is acting with the authorisation of the Registrar under s16 or the Minister under s18 of the Act, and to s62 of that Act…..

The document gives a number of reasons why consultation with Aboriginal interests should be sought including the reason that some Aboriginal people are the traditional owners and/or custodians of sites or places which are of religious significance to Aboriginal people.  It says that in exploration of Crown land the consultation process is required prior to the commencement of exploration work but can await the granting of title.
It gives detailed advice about which Aboriginal people should be consulted, and there are detailed suggestions about how the consultation should proceed.
Three main types of strategy to ensure that sites of importance to Aboriginal people are not disturbed by exploration work are mentioned, being site avoidance, work area clearance and site identification.  There is a recommendation for ongoing consultation……. In view of my findings of fact about the guidelines and the Aboriginal Affairs Department’s response to inquiries I would have concluded that it is unlikely that these grantee parties will fail to consult with the native title party and the Waljen People about the location of their exploration activities and that it is unlikely that they or those acting on their behalf will interfere with areas or sites of particular significance in accordance with the traditions of the Waljen People.”

[52] Neither the government party or the grantee made any submissions either on the existence and relevance of such Guidelines or the preparedness (assuming that such Guidelines remain in force and are circulated in the manner described by Deputy President Seaman) of the grantee party to abide by them. In Ward v Western Australia (1996) 69 FCR 208, Carr J considered determinations by the Tribunal where the Guidelines were an issue. He noted that in the determinations under appeal the Guidelines were in evidence in each of the matters. There was evidence that the Guidelines would be sent to the grantee on the grant of the tenement. Moreover it would appear that the Tribunal had before it correspondence from the grantee parties that they would conform with the Guidelines, were aware of the provisions of the Aboriginal Heritage Act and would comply with them – see p.227.  As I said, none of this material was presented in this inquiry.

[53] There have been a number of Tribunal determinations on the weight that should be placed on the operation of the Aboriginal Heritage Act 1972 (as well as other pieces of State legislation and other material) on the likelihood of sites of particular significance being interfered with upon the grant of a mining tenement.  The position reached by the Tribunal was outlined by Deputy President Sumner in Ben Ward & Ors on behalf of the Miriuwung-Gajerrong People/State of Western Australia/CRA Exploration Pty Ltd, WO95/34, 29 February, 1996 in the following manner:

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

[54] This approach to section 237(b) was upheld by Carr J in Ward v Western Australia (1996) 69 FCR 208. Nevertheless, Carr J did point out that in one of the Tribunal determinations before him, the Member had reviewed evidence of:

• the fact that the proposed grantee’s attention had been drawn to the Aboriginal Heritage Act in the schedule of endorsements;

• the various provisions of both the Aboriginal Heritage Act and the  Mining Act;

• the distribution of the Guidelines; and

• the administration of both the Aboriginal Heritage Act and the Mining Act.

As Carr J pointed out, it was only after a consideration of these matters that the Tribunal Member reached, as a matter of fact, a finding that there was not likely to be interference as understood by paragraph (b).

[55] It should also be noted that it would not be correct, in my opinion, to assume that, because the attention of a grantee is brought to the various materials outlined above, inevitably a finding would be reached that it would be unlikely that there would be interference pursuant to paragraph (b).  Issues concerning the likelihood of the grantee complying with the guidelines and the very nature of a site (complex interlocking sites) have resulted in the Tribunal finding that there is a likelihood of interference – see Re Miriuwong and Gajerrong Peoples (1996) 128 FLR 90 (per Member Wilson), Raymond Wallaby & Ors on behalf of the Purnululu People/State of Western Australia/Andrew Drummond and Associates Pty Ltd, WO95/35, Mr Kim Wilson, 29 April, 1996 and Ngaluma and Injibandi People/State of Western Australia, WO96/17, Mr Kim Wilson, 26 July, 1996.

[56] In Derrick Smith Deputy President Franklyn determined that, in the absence of evidence to the contrary, the Tribunal will assume that the grantee will not act in breach of the relevant law and that those in authority will exercise a lawful discretion properly.  In other words, it was determined that it is appropriate for the Tribunal to apply a presumption of regularity in the absence of contrary evidence. This finding is in accordance with the views of Deputy President Seaman in Re Iirruntyju-Papulankutja Community which is outlined in [19].  I accept, and have applied, the presumption of regularity in this matter.

[57] The issue that the Tribunal is confronted with in this inquiry is that the proposed mining tenement will overlap a site, which is on the permanent register, for a number of square kilometres.  This is not a situation whereby there is a site placed on the permanent register that is a small discrete area located within a sizeable proposed tenement area and where there is evidence before the Tribunal that it is unlikely that the activities of the grantee will pose a real risk of interference.

I have no evidence before me which would either warrant or enable me to somehow delineate parts or sites in the area of the substantial Lake Johnston overlap and view only those areas or sites as areas or sites of particular significance. The only material before me is that the whole of the declared area is of particular significance within the meaning of section 237(b). Consequently the issue then becomes one whereby the grantee may not have to be in breach of section 17 of the Aboriginal Heritage Act 1972 to “interfere” with the site. I am of the view that the concept of “interference” in section 237(b) is of potentially wider import than the proscribed activities in section 17. For example, the driving of vehicles, including heavy machinery, over the bed of Lake Johnston, may not result in a breach of section 17, but it could result in interference pursuant to section 237(b) depending on the circumstances.

Consequently I have approached this matter with the view that the concepts outlined in section 17 of the Aboriginal Heritage Act 1972 do not “cover the field” of interference as understood by section 237(b).

[58] Viewed from this perspective, there is a situation where the grantee’s activities (albeit lawful) are likely to involve interference with the area of the declared protection area.  That area comprises a sizeable proportion of the proposed tenement (I would estimate around 20%).  It is unlikely that a grantee exercising its lawful entitlements under the terms of the proposed mining tenement would not engage in some form of exploration activities in this area, and there is no evidence that the grantee would segregate the tenement between the area of Lake Johnston and the remaining portion.

[59] The Tribunal is required, as part of the predictive assessment, to conduct an inquiry as to the physical activities that are likely to take place on the proposed tenement.  The Tribunal is no longer required to imply a “worst case” scenario, predicated as it would be on an assessment of the potential consequences of a full exercise of a grantee’s rights (cf the pre 1998 leading case of Western Australia v Ward (1996) 70 FCR 265).

Instead, in this inquiry I have applied the approach outlined by Carr J in Ward v Western Australia (1996) 69 FCR 200, which again reflects the law post the 1998 amendments to the Act.

However, even adopting this approach, and applying the presumption of regularity, I have reached the view, on the particular material before me, that there is a real chance that interference will occur to an area of particular significance, namely the overlap area of Lake Johnston.

[60] As mentioned, the Tribunal has before it material that is quite scant in this area. The grantee has chosen not to produce any evidence whatsoever.  The government party has failed to provide submissions on the existence of Guidelines of the type previously discussed or any other material that would be of assistance to the Tribunal.

[61] A different result may have been reached if the grantee or the government party had submitted material of the type considered by the Tribunal in many previous inquiries. As it is, and having regard to the material actually submitted, I find it unlikely that a grantee exercising its lawful rights, albeit properly, will not engage in activities that have likelihood of interfering with the site. The very nature and size of this site, the degree of overlap and the content of the grantee’s legal entitlements are such that viewed at from the prism of a predictive assessment of likely impact, it is impossible not to come to the conclusion that there is a real risk of interference within the meaning of section 237(b).

I would not want it to be perceived that this determination signals a different approach to the interpretation of section 237(b) than has hitherto applied. Although I have found that section 17 of the Aboriginal Heritage Act 1972 does not “cover the field” of interference for the purposes of section 237(b), the facts in this inquiry were unusual and the material presented by the parties scant. It would only be in unusual or exceptional cases that the protection afforded by section 17 would not suffice to the deal with the issue of interference. However, as this inquiry illustrates, there may well be instances where section 237(b) requires the Tribunal to look beyond section 17.

Section 237(c) - major disturbance to land or waters

[62] The government party contended that the grant of the proposed tenement would not be likely to involve major disturbance to the land or create rights whose exercise is likely to involve major disturbance to the land, as the grantee, acting lawfully in the exercise of the rights given to it by the proposed tenement, will not cause physical disturbance to the land which constitutes major disturbance by the standards of the whole Australian community.

[63] On behalf of the objector, John Graham in his Affidavit deposed as follows:

“8. As the tenement area seems to be only accessible on foot, the Grantee Party would need to build access roads for entry onto the tenement in order to conduct its exploration activities.  I think that the building of roads on the tenement and the sort of equipment used would involve a major disturbance to the land and may interfere with areas that are of great importance to the Ngadju people.  The Ngadju people seek to avoid any damage or interference to all sites of particular spiritual and cultural significance whatsoever.”

Paragraph 8 (there are two paragraphs numbered “8” in this Affidavit, this is the second).

[64] The government party also highlighted Part 2 of the Second Schedule which sets out the conditions to be imposed on the proposed tenement.  They are the same as those I set out in [29] in Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group and Maureen Young on behalf of the Ngadju People/State of Western Australia/Zeedam Enterprises, WO00381, WO00/400, 4 May, 2001.

[65] The legal test to be applied in interpreting section 237(c) was explained by the Full Federal Court in Dann v Western Australia (1997) 74 FCR 391.

[66] Whilst the view I have reached on section 237(b) renders any finding under section 237(c) jejune, nevertheless it is important in determining the likelihood of major disturbance to have regard to the limited purpose and relatively low impact of mineral exploration. This is especially important when the exploration activity is to occur over a significant area of lake in a remote location and without any particular issues arising (for example sensitive geological questions).

[67] I am unable to find on the evidence before me that the grant of the tenement would be 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 reaching this conclusion I have taken account of the large area of the proposed tenement, its remote location and the relative low impact of the proposed mining exploration activity.

Determination

The determination of the Tribunal is that the grant of Exploration Licence 63/738 to South Coast Metals Pty Ltd is not an act, which attracts the expedited procedure under the Act. The objection is upheld.

John Sosso

Member