Alec Tucker & Ors on behalf of Banjima/Western Australia/BHP Billiton Minerals Pty Ltd
[2013] NNTTA 149
•22 October 2013
NATIONAL NATIVE TITLE TRIBUNAL
Alec Tucker & Ors on behalf of Banjima/Western Australia/BHP Billiton Minerals Pty Ltd, [2013] NNTTA 149 (22 October 2013)
Application No: WO2012/0884
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Alec Tucker & Ors on behalf of Banjima (native title party)
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The State of Western Australia (Government party)
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BHP Billiton Minerals Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Member Helen Shurven
Place: Perth
Date: 22 October 2013
Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters - expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases: Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99, (‘Cheinmora’)
Kevin Walley on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan [2001] NNTTA 78, ('Brosnan')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Representative of the
native title party: Ms Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Matthew Smith, Department of Mines and Petroleum
Representative of the Ms Rebecca Shanahan, Ashurst
grantee party: Ms Jean Bursle, Ashurst
REASONS FOR DETERMINATION
On 18 April 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant prospecting licence P47/1598 (‘the proposed licence’) to BHP Billiton Minerals Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
According to the s 29 notice, the proposed licence is 17.99 hectares in size and is situated 93 kilometres north west of Mount Newman. The proposed licence is entirely overlapped by the Banjima native title claim (WC2011/006 – registered from 5 August 2011).
On 15 August 2012, Alec Tucker, Charles Smith, Keith Lethbridge, Steven Smith, Maitland Parker, Dawn Hicks, Timothy Parker and Archie Parker, on behalf of Banjima (WC2011/006) lodged an expedited procedure objection application with the Tribunal in respect of the proposed license.
In accordance with standard practice in relation to expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted. These directions allowed a period after the closing date for the lodgement of objections (in this case, 20 August 2012) for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent. In the present matter, parties attempted to negotiate an agreement, and directions were amended and subsequently vacated to allow time for these negotiations. However, at a status conference on 15 May 2013 the grantee party requested the matter to proceed to inquiry and direction dates were adjusted accordingly.
In accordance with those directions, the Tribunal received the Government party’s supporting documents on 17 June 2013. The native title party provided its submissions on 1 July 2013. The native title party provides submissions that the proposed licence is not an act attracting the expedited procedure on the basis that the proposed licence is likely to interfere with areas or sites of significance to the native title holders - no submissions on the issue of interference with the carrying on of community and social activities or major disturbance to land or waters were made. As such, this decision will only relate to s 237(b) of the Act.
The grantee party provided its contentions on 8 July 2013. The Government party’s statement of contentions was provided to the Tribunal on 15 July 2013. On 29 July 2013, the grantee party provided a brief document clarifying some points within their original contentions. No party objected to this clarification document and as it raised nothing substantively new to the grantee party contentions, I accept it forms part of the information for consideration in this determination.
I was appointed by the President, Ms Raelene Webb QC, on 15 October 2013 as the member for the purpose of conducting the inquiry.
Following submission of compliance documents, parties indicated that they had no further submissions and were content for the matter to proceed ‘on the papers’ in accordance with s 151(2) of the Act. I have reviewed the material before the Tribunal and I am satisfied that the matter can be adequately determined in that manner.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act).
With respect to issues arising under s 237(b), I adopt the principles outlined in Maitland Parker at [31]–[38], [40]-[41].
Evidence in relation to the proposed acts
In addition to its statement of contentions, the Government party provides the following documents in relation to the proposed licence:
· A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
· Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).
· A copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract.
· An instrument of licence and first schedule listing land included and excluded from the grant.
· A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.
The Tengraph quick appraisal establishes the underlying land tenure of the proposed licence area is 100 per cent vacant crown land.
The quick appraisal indicates that the proposed licence area has previously been subject to one exploration licence granted in 1993, which expired in 2001, overlapping 100 per cent of the proposed licence; and one temporary reserve granted in 1958 and cancelled in 1964, also overlapping 100 per cent of the proposed licence.
The report from the DAA Database establishes that there are no registered sites or ‘other heritage places’ within the proposed licence. Documents provided by parties do not indicate any Aboriginal communities within the proposed licence or the surrounding area.
The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tarlpa at [11]-[12]).
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Government party has also indicated it intends to impose a condition requiring the grantee party to offer to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party.
Evidence of the grantee party
The grantee party has provided a brief statement of contentions which states:
- Parties have negotiated without success to implement the terms of a specific heritage protocol;
- The grantee party is willing to enter into an RSHA with the native title party;
- Some brief information regarding the grantee party’s work program for the area;
- The grantee party will implement its comprehensive policy of sustainable Aboriginal heritage protection as well as flora and fauna protection and rehabilitation procedures.
Following the submission of their statement of contentions, the grantee party provided a further document to clarify a matter referred to in the original contentions, namely that the heritage protocol that was being negotiated by parties was agreed to by both parties except for the heritage survey daily rate. The grantee party flagged that it would be their preference to enter into that agreement with the native title party on the basis of the basis of the daily rate offered by the grantee party. Alternatively, the grantee party remains willing to enter into an RSHA with the native title party if that is their preference.
Evidence provided by the Government party
The Government party notes there are no Aboriginal communities or registered DAA sites on the proposed licence, and that there previously has been exploration and mining activity over the proposed licence area, including an exploration licence and temporary reserve.
The Government party notes the grantee party has not provided evidence in relation to how it intends to exercise its rights in the proposed licence area and, therefore, the Tribunal must assume the grantee party intend to exercise the full suite of rights conferred by the Mining Act.
The Government party states there is no evidence the grantee party will act in breach of the regulatory regime, and notes that endorsements and conditions will be imposed on the proposed licence. They also note the grantee party has indicated it is willing to enter into an RSHA in relation to the proposed licence.
The Government party notes the native title party has not provided any evidence in this matter to support the argument that the expedited procedure should not apply. I accept the Government party’s contention that failure to lead evidence will not necessarily result in a party failing on an issue, but where facts are peculiarly within the knowledge of a party, the failure of that party to produce evidence as to those facts may lead to an unfavourable inference being drawn (see for example Brosnan at [63] and Silver at [23]).
The Government party has addressed each sub-section of s 237 in its contentions. While the focus of this determination is s 237(b), I outline briefly the submissions by the Government party on s 237(a) and s 237(b) for completeness.
In relation to s 237(a), the Government party states the native title party’s contentions do not set out any asserted community and social activities. It states that if the native title party were to provide evidence of any community or social activities in the proposed licence area, there would not likely to be direct interference because:
· The grantee party has indicated its willingness to enter into an RSHA type agreement with the native title party;
· The proposed licence area has been subject to prior mineral exploration activity;
· There are no Aboriginal communities within the area of the proposed tenements; and
· The activities of the grantee party and native title party can coexist.
In relation to s 237(b), the Government party states the native title party have not provided sufficient evidence to demonstrate that the proposed licence area contains sites of 'particular significance', and submits that interference with any sites, should there be any in the area, is not likely because:
· The area has been subject to prior exploration and possible mining activity; and
· Relevant provisions within the AHA address protection of areas or sites of particular significance and consultation with the native title party in relation to these.
I do note that there is evidence of previous exploration activity on the proposed licence, but nor previous mining activity. In any event, it is likely that any exploration activity would have been more intensive than prospecting activity which is proposed by the grantee party in this matter.
In relation to s 237(c), the Government party states the native title party has provided no evidence that the grant of the proposed licence will cause or constitute major disturbance to land or waters as envisioned by s 237(c) of the Act. The Government party states the grant of the proposed licence is not likely to involve major disturbance to land or waters because:
· The Government party’s regulatory regime will avoid major disturbance to land and waters;
· Proposed endorsements and conditions require rehabilitation of the land following exploration;
· The proposed licence has been subject to prior exploration and mining activity and the activities contemplated by the grantee party would be the same as or no more significant than the previous and continuing use of the area; and
· There is no evidence that the area has any particular characteristics that would be likely to result in major disturbance to land and waters.
Considering the Evidence in context of s 237 of the Act
Interference with sites or areas of particular significance - s 237(b)
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DAA documentation and Tribunal mapping that there are no registered sites within the proposed licence. However, this does not mean there may not be other sites or areas of particular significance to the native title party in the area. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The native title party contentions state that sites of particular significance exist within the proposed licence area. Further to this, they contend that sites or areas of particular significance located outside of the proposed tenement area may be impacted upon by the grant. However, the native title party’s contentions only speak in generalities, and provide no evidence or content to identify any specific sites. Even if I were to accept that there are sites in the area which have not been identified, the native title party does not address how or why sites may be of ‘particular significance’ to the native title party.
I accept the Government party contentions at [27] above that, in the event of there being any areas or sites of particular significance within the proposed licence, interference with those areas is not likely.
The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]). In the present matter, the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of any sites, or that if any existed, they are likely to be interfered with.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance. I am satisfied, based on the available evidence, that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed licence in this matter, are likely to prevent interference with any area or site of ‘particular significance’ in the context of prospecting activities.
Taking all of these factors into account, I find there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.
Determination
The determination of the Tribunal is that the grant of exploration licence P47/1598 to BHP Billiton Minerals Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
22 October 2013
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