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Editors --- "RE Irruntyju-Papulankutja Community - Case Summary" [1996] AUIndigLawRpr 42; (1996) 1(2) Australian Indigenous Law Reporter 222

Re Irruntyju-Papulankutja Community

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

6 October 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 -- Native Title Act 1993 (Cth), s. 237 -- Burden of proof -- Whether proposed act would directly interfere with community life -- Whether proposed act would affect Aboriginal 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 two exploration licences to Broadmeadow Pty Ltd. The land concerned was in the Great Victoria Desert near Blackstone and was land reserved for Aboriginal people under s. 29 of the Land Act 1933 (WA). 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.

(2) The grant of the proposed exploration licences attracts the expedited procedure.

(3) The legislation and practice relating to entry on to an Aboriginal Reserve make it unlikely that there will be interference with places of significance in accordance with the traditions of the native title parties.

(4) It is not likely that the ground disturbing activities authorised by the proposed exploration licences would be regarded by members of the broader community as a major disturbance to the lands concerned.

The legislative background

The Native Title Act 1993 authorises governments to do acts which apply to the holders of native title in the same way as they would if they were the holders of freehold titles and gives the grant of a mining lease as an example: s235(5) and (6). The Act defines mining to include exploration: s253.

If the proposed act is the creation of a right to mine or the compulsory acquisition of native title rights it is only valid if the government has first given notice of its intention to do the act and negotiated with the native title parties: s28, s29.

If the negotiations fail an arbitral body may determine whether or not the act may be done, but its determination may be overridden by a Minister: s38, s42.

If the government includes in its notice a statement that it considers the act is an act attracting the expedited procedure it opens the possibility that it may be able to do the act without going through the process of negotiation: s32.

Persons who are, or within 2 months become, registered native title claimants may within 2 months lodge an objection with the arbitral body, in this case the Tribunal, to the inclusion of the statement (s253, s186(1)(f), s29(2)(a) and (b), s30 and s32(3)). The arbitral body must then determine by reference to s237 of the Native Title Act whether the act attracts the expedited procedure.

The procedure to be followed

In this case the State of Western Australia is the government concerned and the proposed acts which it considers attract the expedited procedure are the grant of two exploration licences. This is the first hearing of its kind to come before the Tribunal and it is necessary to refer to a number of provisions in the Act which govern the Tribunal's determination.

Before making a determination the Tribunal must hold an inquiry (s139(b), s75(1)) to which the parties are the government party, the native title parties, and the grantee parties: s141(2), s253. It must ensure that every party has a reasonable opportunity to present its case, inspect any documents and make submissions: s 142.

It may hold hearings (s151) at which the parties have right to appear and call witnesses: s152, s156(3). Participation in the hearings may be by telephone, closed circuit television or any other means: s153. However hearings must be held in public unless the Tribunal is satisfied that the whole or part should be held in private, in which case it may give directions as to who may be present: s154. It may give directions for the non-disclosure or limited disclosure of documents or evidence: s155. The proceedings must be conducted in a fair, just, economical, informal, prompt manner and take account of the cultural and customary concerns of the native title parties. The Tribunal is not bound by technicalities, legal forms or rules of evidence: s109. It may administer oaths, but cross-examination and re-examination are by leave only: (s156).

The resulting determination must be in writing and state any findings of fact (s164, s162) and is binding and conclusive (s253, s139(b), s165) but subject to an appeal on questions of law to the Federal Court: s169.

The procedure which the Tribunal will normally follow in these cases is detailed in its guidelines entitled "Procedures Under the Right to Negotiate System" as revised on 8 September 1995. In accordance with the guidelines the Honourable C Sumner held pre-inquiry directions hearings when he gave directions for the provision of statements of contentions by all parties and an outline of the evidence to be adduced at the hearing. These directions resulted in significant savings of time in the course of the subsequent hearing. For reasons which will be apparent from my findings this was not a case where the native title holders' case about areas and sites of significance could be dealt with upon documentary evidence.

Only the government party and the native title parties appeared at the hearings which were held in Perth on 20 September 1995, at Warburton on 21 and 22 September 1995 and finally by tele-conference on 29 September 1995 when I was in Darwin, Counsel for the native title holders was in Alice Springs and Counsel for the government party was in Perth.

The hearings were held in public except that I ordered that evidence and submissions about sites and areas of significance from the native title parties was to be taken in closed hearings which Counsel attended but were otherwise confined to those who were authorised by tradition to hear the evidence. There were separate closed meetings of Aboriginal men and women which were not tape recorded. Counsel gave their undertakings to maintain the confidentiality of this private evidence and to return their notes to me. These will be kept with my notes of the evidence and the notes of the women's statements taken by a female Tribunal Case Manager, Ms Allison Brett, together with three maps marked or otherwise identified in the course of the private hearings.

That material is held in an envelope which has been sealed and marked with an instruction that it may only be opened by me or pursuant to an order of the Court. Arrangements have been made for that envelope to be held in a secure place.

In general I offered opportunities for cross-examination and re-examination but I was influenced in my decision to do so by the fact that this is the first hearing of its kind to be held by the Tribunal and also by the concise fashion in which Counsel were conducting their cases and by the understanding of cultural concerns demonstrated by counsel for the government party in the questions which he asked of native title parties.

However in my view the discretion to give leave to cross-examine or to re-examine must be exercised taking account of the cultural and customary concerns of Aboriginal peoples, as s109 of the Act requires, and also taking account of the fact that these hearings are part of an expedited procedure.

Matters of law

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 section is in the following terms:

"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."

Although the words of s237 are of a very general nature, in my opinion it reflects two of the main objects of the Act set out in s3, namely to provide for the recognition and protection of native title; and to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings. I regard it as a provision designed to balance the competition between certain activities of governments and the interests of native title holders. Those government activities expressly include mining leases and therefore mineral exploration tenements. Mining exploration is a common activity in Australia and merited mention by the Prime Minister in the second reading speech when he said:

"Moreover classes of grant can be excluded from the negotiation process altogether where they would have minimal effect on any native title. Certain prospecting and exploration permits would be likely to fall within this category."

In my opinion the act with which the section is concerned in this case is the grant of the exploration licences and the expression "does not" in each subsection must be read as meaning "is not likely to". The grant of a licence cannot cause the interferences or disturbance to which the section refers without activity by a grantee party. Bearing in mind that the provision is concerned with an expedited procedure 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 grantee parties will act lawfully.

No mention is made of Aboriginal tradition in subsection (a). In my opinion the words "directly interfere with community life" in subsection (a) require the native title party to show that it is likely that lawful activities by or on behalf of the grantee party closely connected with the exercise of the rights given by the exploration licence will result in physical interference with the life of their community.

In my view subsection (b) requires the native title party to show that it is likely that the grantee party and those acting on its behalf, behaving lawfully in the exercise of the rights given by the licence, will interfere with areas or sites of particular significance, in accordance with the traditions of the native title party.

Subsection (c) makes no mention of Aboriginal tradition. In my opinion it requires the native title parties to show that it is likely that the grantee party and those acting on its behalf, behaving lawfully in the exercise of the rights given by the licence, will cause a physical disturbance to the land which constitutes a major disturbance by the standards of the broader community.

Material which I regard as irrelevant

The government party presented evidence about the pre-eminent position of the State of Western Australia in relation to mining but I regard that as irrelevant. It also presented evidence inviting the conclusion that explorers do not commonly use intrusive techniques such as costeaning and bulldozing grid lines. I regard that evidence as irrelevant. The native title party presented evidence about the disruptive effect of the activities of persons related to the grantee party which it says have led to discord and violence in the community. I ruled that evidence to be irrelevant.

General findings

The area of the proposed exploration licences follows two applications by Broadmeadow Pty Ltd. The first, application number E69/1069, is for 39 blocks and the second, application number E69/1070 is for 70 blocks. The average area of a block is 2. 8 square kilometres.

The southern boundary of the first area is almost entirely contiguous with the northern boundary of the second. They are in the Great Victoria Desert near Blackstone about 70 kilometres due west of Surveyor-General's Corner within Reserve 17614 which is land reserved for the use and benefit of the Aboriginal inhabitants under s29 of the Land Act 1933.

This application is made by the following persons who are native title holders having lodged a native title application which has been accepted and registered on the Register of Native Title Claims over land which includes these areas:

Fred Forbes, Dennis Forbes, Winston Mitchell, Yukun Lewis, Stanley Mervyn, Raymond Nelson, Jimmy Nelson and Sonny Lewis.

If the licences were granted they would permit exploration for all minerals and would bear an endorsement as follows:

The licensee's attention is drawn to the provisions of the Aboriginal & Torres Strait Islander Heritage Act 1972.

They would be subject to the following 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. No mining on Use and Benefit of Aboriginal Inhabitants "A" class Reserve 17614 without the prior written consent of the Minister for Mines.

Findings as to community life

Members of the native title parties' community hunt in some parts of the areas covered by the proposed licences but the evidence has not satisfied me that it is likely that the opportunity to hunt or that the resources to be hunted will be diminished by the grant of the licences. The evidence did not establish that they or their community live in the areas and although the written contentions of the native title parties assert that they have a windmill, a tank and housing within the area of E60/1070 no evidence was led to establish those matters.

Findings as to places of significance

There are places of significance to the native title parties in accordance with their traditions on part of each of the areas and a large part of their boundaries is very close to places of significance.

The native title parties by their traditions are obliged to keep their traditional knowledge about those places of significance secret from any person unauthorised by Aboriginal tradition. The presence of people not authorised by their traditions on some of those areas would in itself create an apprehension of grave danger in accordance with their traditional beliefs.

Those places are Aboriginal sites within the meaning of s5(b) of the Aboriginal Heritage Act 1972 (WA), an Act which is not to be construed so as to require the native title holders to disclose information or act contrary to any prohibition of relevant customary law: s7(1)(b).

A member of the broader community would commit an offence under that Act if he excavated, destroyed, damaged or in any way altered an Aboriginal site but it would be a defence to a person charged to prove that he did not know and could not reasonably be expected to have known that the place was a place to which that Act applied: s17 and s62.

In my opinion persons behaving lawfully could therefore interfere with the native title parties' places of significance and it is likely that if exploration activities were carried out without the co-operation and day to day guidance of the native title parties they would interfere with them.

The Minister for Mines will consult with the Minister for Aboriginal Affairs pursuant to s24(7) of the Mining Act before giving the grantee parties consent to explore in these areas.

The Minister for Aboriginal Affairs is not likely to grant the grantee parties a permit to enter the Reserve pursuant to s31 of the Aboriginal Affairs Planning Authority Act without consulting the Aboriginal Lands Trust and obtaining their view on the request pursuant to Regulation 8 of the Aboriginal Affairs Planning Authority Regulations.

The Trust is likely to consult with the native title parties through the Ngaanyatjarra Council and the native title parties will either oppose the grant of any entry permit or express a willingness to grant it subject to the type of work area/programme clearance agreement used by the Council which allows Aboriginal men and women to work separately as guides to protect places of significance without divulging their location.

The Minister for Aboriginal Affairs is likely to be advised of the wishes of the native title parties and he is likely to advise the Minister for Mines to proceed in accordance with them. The Minister for Mines is likely to withhold his consent to mine until the grantee parties have reached a work area/programme clearance agreement with the native title parties.

Major disturbance

The land with which I am concerned is the total area of each of the two exploration licences. As the evidence stands, apart from a road those areas are entirely undeveloped by the standards of the broader community. There is no evidence of any physical peculiarity which could affect a consideration of what is a major disturbance in the particular circumstances.

It was common ground that 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. It was also common ground that the grant of a mining lease to a successful explorer would itself be a further future act under the legislation.

Conclusions

I am not satisfied that the native title parties have shown that a direct interference with their community life is likely.

The legislation and practice relating to entry on this Aboriginal Reserve make it unlikely that there will be interference with places of significance in accordance with the traditions of the native title parties.

These are very large open areas in very remote country. It is not likely in my view that the ground disturbing activities authorised by the proposed exploration licences would be regarded by members of the broader community as a major disturbance to the lands concerned.

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.

...

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