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Editors --- "Re Waljen People - Case Summary" [1996] AUIndigLawRpr 56; (1996) 1(2) Australian Indigenous Law Reporter 227

RE WALJEN PEOPLE

National Native Title Tribunal (Paul Seaman QC, Deputy President)

24 November 1995, Perth

Aborigines and Torres Strait Islanders -- Native title -- Notice of proposed future act -- Right to negotiate -- Inquiry into whether proposed act attracts the expedited procedure -- Burden of proof -- Whether the grant of an exploration licence is a permissible future act -- Native Title Act 1993 (Cth), s. 237 -- Whether proposed act would directly interfere with community life -- Whether proposed act would affect Aboriginal sites of significance -- Adequacy of Aboriginal Heritage Act 1972 (WA) in protecting sites of significance -- Whether proposed act would cause a major disturbance to land.

Words and phrases -- "does not directly interfere with community life" -- "does not involve a major disturbance to land and waters" -- "does not interfere with areas or sites of significance, in accordance with their traditions".

The Western Australian government proposed to grant four exploration licences on the Mt Margaret Mineral Field in the East Goldfields region of Western Australia. In accordance with s. 29 of the Native Title Act 1993 (Cth) (`NTA') notice was given of the intention to issue the licences. The notice included a statement that the act attracted the expedited procedure and was therefore not subject to the right to negotiate under the NTA. The applicants are native title claimants whose claimed land is affected by the proposed licences. The applicants objected to the inclusion in the notice of the statement that the expedited procedure applied on the basis that the proposed act may directly interfere with community life, may interfere with areas and sites of significance and the act may involve a major disturbance to land.

Held:

(1) The burden of proof in an inquiry into whether a proposed act attracts the expedited procedure is on the objecting party. Re Irruntyju-Papulankutja Community followed.

(2) The issuing of exploration licences was not an impermissible future act.

(3) The grant of the proposed exploration licences attracts the expedited procedure. The issuing of the licences is not likely to interfere directly with community life, nor is it likely to interfere directly with areas or sites of significance in accordance with the traditions of the Waljen peoples. Re Irruntyju-Papulankutja Community applied.

(4) The regime established by the Aboriginal Heritage Act 1972 (WA) was sufficient to protect Aboriginal sites of significance. Re Irruntyju-Papulankutja Community distinguished.

The background

The State of Western Australia (the government party) gave notice in accordance with s29(4) of the Native Title Act 1993 of its intention to grant four exploration licences in the Mt Margaret Mineral Field in the Eastern Goldfields of Western Australia and included in each of its notices a statement that it considered the acts to be acts attracting the expedited procedure.

Section 237 of the Act provides:

"A future act is an "act attracting the expedited procedure" if:

(a) the act does not directly interfere with the community life 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 does not 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 of Part 2) of the native title in relation to the land or waters concerned; and

(c) the act does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned."

It is common ground that Roberta Vera Thomas (the native title party) has lodged a native title application which has been accepted and registered on the Register of Native Title Claims for herself, Leo Winston Thomas and all those persons who are Waljen peoples over the areas of the proposed exploration licences.

The details of the proposed exploration licences are as follows:

39/463 for 22 blocks by Sons of Gwalia Limited involving approximately 62 square kilometres, 25 kilometres North-East of Yundamindra Homestead;

39/465 for 15 blocks by Abador Gold NL involving approximately 42 square kilometres, 50 kilometres North of Yundamindra Homestead;

39/468 for 8 blocks by Acacia Resources involving approximately 16 square kilometres approximately 4 kilometres East of Mount Celia near the southern end of Lake Carey;

39/475 for 11 blocks by Sons of Gwalia Limited in the vicinity of Mount Howe.

I refer collectively to the applicants for these exploration licences as the grantee parties. The licences if granted would authorise exploration for all minerals and be endorsed as follows:

"The licensee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972"

and be subject to the following common conditions:

1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.

2. All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the District Mining Engineer. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the District Mining Engineer.

3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration programme.

4. Unless the written approval of the District Mining Engineer is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

5. The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

i) the grant of the licence; or

ii) registration of a transfer introducing a new licensee;

advise, by certified mail, the holder of any underlying pastoral lease details of the grant or transfer.

The native title party lodged an objection in the following terms:

"a) I believe that the proposed act is not an act attracting the expedited procedure because:

i) The act may directly interfere with the community life of native title holders in relation to the land or waters concerned;

ii) The act may interfere with areas or sites of particular significance in accordance with their traditions to the persons who are the holders of native title in relation to the land or waters concerned. Details of registered sites have been filed with the application for determination of native title.

iii) The act may involve major disturbance or create rights whose exercise will involve major disturbance to any land or waters.

b) The type of evidence the objector will produce will be with respect to the community life of the holders of native title, details of registered native sites and areas of particular significance and evidence of likely major disturbance or create rights whose exercise will involve major disturbance to the land and waters concerned."

That evidence was not forthcoming but a submission was made that the native title party had no evidentiary burden in these proceedings.

Legal issues

In re Irruntyju-Papulankutja Community Objection to Expedited Procedure, a determination delivered on 6 October 1995 number WO95/7, I said:

"In my opinion once the native title parties object to the inclusion of the statement that the government party considers that the act attracts the expedited procedure, the Act treats them as applicants (s75) and they have to satisfy the Tribunal by evidentiary material that s237 does not apply to the act."

The native title party challenges that conclusion on the basis that the government party having asserted that it has reached a considered view is obliged to present and establish the basis of its consideration that the act attracts the expedited procedure. It was submitted that the determination to be made is whether the act attracts the expedited procedure and the Tribunal is not called on to determine whether the objection is sustained or not. It was said that the positive conclusion for which the other parties contend is that the expedited procedure applies and they should have the burden of proof that it does.

I do not accept the submission. Not only does s75 treat the native title party as an applicant but s148 provides that the Tribunal may dismiss an application at any stage of the inquiry if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application.

Furthermore if the burden of proof lay as the native title party suggests it is difficult to see how a government party or grantee party could prove the negative matters dealt with in s237(a) and (b) of the Act, which would in most cases be entirely within the knowledge of the native title party.

I also permitted counsel for the native title party to offer arguments which challenged the legal conclusions which I reached in re Irruntyju-Papulankutja as to the construction of s237(a) and (c) of the Native Title Act.

It is sufficient to say he urged a construction which would be more favourable to Aboriginal interests and that I remain of the views which I have previously expressed.

Bearing in mind that this is an expedited procedure but equally bearing in mind that the parties have a right of appeal to the Federal Court on a question of law I will endeavour to deal briefly with other submissions which did not arise in re Irruntyju-Papulankutja.

It was submitted on behalf of the native title party that the grant of the exploration licences was likely to involve major disturbance to the land because if minerals are found the grantee parties have the right to apply for and be granted mining leases pursuant to s67 of the Mining Act 1978.

By virtue of s28(1) of the Native Title Act a mining lease would not be valid if it were granted without compliance with the requirements of Subdivision B.

Section 237 is part of the scheme of Subdivision B and in my view when s237(c) speaks of an act which does not involve major disturbance it refers to the particular permissible future act which is then being processed under the Subdivision and concerns itself with activities permitted by that future act and not by some other permissible future act which may in some way be causally connected with it.

A further submission on behalf of the native title party was that the grant of an exploration licence is not a permissible future act because that act could not be done in relation to the land if the native title holders concerned instead had held ordinary title to it (s235(5)(b)(i)). Section 253 defines "ordinary title" as a freehold estate in fee simple in the land.

The submission was that native title holders suffer the disadvantage of having no right to consent or to refuse to consent to prospecting, exploration or mining before it occurs resulting in damage or injury or desecration to the economic, cultural or religious significance of the land by analogy with the consent provisions relating to Crown land and private land contained in s20(5) and s29(2) of the Mining Act 1978.

In my opinion there is no place for any analogy of that sort, and the matter is to be approached as if the exploration licences were proposed to be granted over a freehold estate in fee simple in the land.

It was also submitted that the grant of these licences were not permissible future acts because of the operation of s9(1) of the Mining Act which provides:

9. (1) Subject to this Act

(a) all gold, silver, and any other precious metal existing in its natural condition on or below the surface of any land in the State whether alienated or not alienated from the Crown and if alienated whenever alienated, is the property of the Crown;

(b) all other minerals existing in their natural conditions on or below the surface of any land in the State that was not alienated in fee simple from the Crown before 1 January 1899 are the property of the Crown.

(2) Notwithstanding anything in this Act or any previous enactment the owner, grantee, lessee or licensee of or other person entitled to, any land to which this section or any corresponding provisions apply, that is not the subject of a mining tenement, is entitled to use any mineral existing in a natural state on or below the surface of the land for any agricultural, pastoral, household, road making, or building purpose, on that land.

The issue was not raised in written submissions which were filed pursuant to directions and arose in the course of argument.

It was said that the grant of these licences is not a permissible future act unless the native title is treated in the same way as ordinary title and that the native title holder is entitled to the same treatment as a freeholder who acquired title before 1 January 1899.

Perhaps another way of approaching the matter is to say that if the native title party is to be treated as having an ordinary title to the land which was alienated in fee simple before 1 January 1899 then the act of granting an exploration licence for all minerals in respect of it is not an act that could be done if the native title party held ordinary title to it.

In my view that point does not arise for consideration in this case because no evidence was put before me by the native title party of the Waljen people's native title rights and interests in minerals in the land concerned.

The facts

1. I find that there are two Aboriginal sites registered under the Aboriginal Heritage Act within the boundaries of proposed licence 39/465. There is no evidence that they are sites of significance to the Waljen people.

2. The Department of Aboriginal Affairs is able to provide the relevant grantee party with a grid reference location of each of those two sites.

3. It is a matter of conjecture whether there are any areas or sites of particular significance in accordance with the traditions of the native title party anywhere on any of the proposed exploration licences.

4. It is a matter of conjecture whether any of the exploration licences would interfere in any way with the community life of the native title party.

5. There is no evidence of any physical peculiarity of the land concerned which would affect the question of a major disturbance to it.

6. If granted, proposed licence 39/364 would be almost entirely on vacant Crown land and the other proposed licences, if granted, would be on pastoral leases. The areas concerned are in remote locations in open country and are very large.

7. The Aboriginal Cultural Material Committee established under the Aboriginal Heritage Act 1972 has as the majority of its business the consideration of applications pursuant to s18 of the Act for Ministerial consent to interfere with Aboriginal sites and in dealing with those applications it does not liaise directly with the traditional owners of the areas concerned.

8. The Aboriginal Affairs Department has the day-to-day administration of that Act. If it receives a request for information from the sites register system kept under the Act it writes to the inquirer informing him that the Act protects all Aboriginal sites whether known to the Department or not and recommends the engagement of qualified consultants to conduct ethnographic and archaeological surveys of the area which should ensure that all Aboriginal interest groups are consulted so that all sites are avoided or identified.

9. Each grantee party has the right to carry out such works as are necessary for the purpose of exploring for minerals on each block and for that purpose may remove 1000 tonnes of material, and a larger tonnage with the Minister's approval: Mining Act 1978 (WA) s66; Mining Regulations 1981 reg 20.

10. 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" which is annexed to these reasons.

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 consent of the Minister under s18 of the Act, and to s62 of that Act 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."

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 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.

Conclusions

I conclude that the grant of these licences is not likely to interfere directly with Waljen community life, nor is it likely to interfere directly with areas or sites of particular significance in accordance with the traditions of the Waljen people nor is it likely to involve major disturbance to the land concerned.

My conclusion about sites is reached because of a lack of evidence of their existence, but if there had been evidence that there were sites of particular significance in accordance with Waljen traditions on the land I would have reached the same conclusion for the following reasons.

In re Irruntyju-Papulankutja I said:

"It follows from these findings that I determine that the act of granting these licences attracts the expedited procedure. However if the lands had not been within an Aboriginal reserve I would have found that they did not.

It follows from the views which I have expressed that if an application of this sort came before me in which similar findings were made about areas or sites of particular significance I would only make a determination that the expedited procedure applied if the proposed exploration licence was conditioned to the effect that the Minister would not consent to exploration until the grantee party produced a written work area/programme clearance agreement with the native title party." ... [Emphasis added in present judgment.]

In this hearing new evidence about guidelines and warnings to grantee parties has been led by the government party which I have accepted and my findings are therefore not similar to those in Irruntyju-Papulankutja.

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.

...

[Held that the exploration licences attracted the expedited procedure.]