Amangu People/Black Peak Holdings Pty Ltd/State of Western Australia
[2013] NNTTA 173
•12 December 2013
NATIONAL NATIVE TITLE TRIBUNAL
Amangu People/Black Peak Holdings Pty Ltd/State of Western Australia [2013] NNTTA 173 (12 December 2013)
Application No: WO2012/0971
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
Amangu People (native title party)
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Black Peak Holdings Pty Ltd (grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 12 December 2013Catchwords: Native title – future acts – proposed grant of an exploration 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 not attracted.
Legislation:Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Acts Interpretation Act 1901 (Cth), s 36
Native Title Act 1993 (Cth), ss 29, 30, 31, 32, 76, 77, 146, 151, 237
Environmental Protection Act 1986 (WA)
Mining Act 1978 (WA), ss 8, 29(5), 61, 66
Cases:Albert Little and Others on behalf of the Badimia People/Western Australia/Lake Moore Gypsum Pty Ltd, [2010] NNTTA 143 (‘Lake Moore Gypsum’)
Ben Ward & Ord on behalf of the Miriuwung – Gajerrong People/Western Australia/CRA Exploration Pty Ltd, [1996] NNTTA 9 (‘Ben Ward’)
Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (‘Cheinmora’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd, [2011] NNTTA 118 (‘Allarrow’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Minister for Lands (WA) v Strickland & Nudding on behalf of the Maduwongga People [1998] NNTTA 2 (‘Strickland’)
Ned Cheedy and Others on behalf of Yindjibarndi #1/Western Australia/Cazaly Iron Pty Ltd, [2008] NNTTA 39 (‘Cazaly Iron’)
Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd, [2013] NNTTA 44 (‘Raymond Ashwin’)
Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’)
Smithv Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’)
Walley v Western Australia (2002) 169 FLR 437 (‘Walley’)
Wilma Freddie & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd [2007] NNTTA 37; Freddie and Others v Western Australia (2007) 213 FLR 247) (‘Globe Uranium)’
Western Australia/Glen Griffin Venn Money/Jack Britten & Ors [2001] NNTTA 53 (‘Money’)
Representative of the Ms Maimbo Chilala, Yamatji Marlpa Aboriginal Corporation
native title party: Mr Marcus Fort, Yamatji Marlpa Aboriginal CorporationRepresentative of the Ms Iva Morrell, McMahon Mining Title Services Pty Ltd
grantee party: Ms Sara Winton, McMahon Mining Title Services Pty Ltd
Representatives of the Mr Jeff O’Halloran and Ms Shelley Moore, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and PetroleumREASONS FOR DETERMINATION
[1] On 2 May 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E70/4016 (‘the proposed licence’) to Black Peak Holdings Pty Ltd (the ‘grantee party’). In the notice, the Government party included a statement that it 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).
[2] According to the s 29 notice, the proposed licence comprises 39 graticular blocks (approximately 11,665 hectares or 116.65 square kilometres) and is located 36 kilometres east of Merkanooka in the shires of Morawa and Perenjori in Western Australia.
[3] The s 29 notice states that if the proposed licence were to be granted, it would authorise the holder to explore for minerals for a term of five years from the date of grant. The Mining Act 1978 (‘WA’) (‘Mining Act’) has provision for extension of an exploration licence (see s 61). Any person who is a registered native title claimant in relation to any of the land or waters covered by the proposed licence within the period of four months after the notification day is a native title party who may, within that four month period, lodge an objection with the National Native Title Tribunal (‘the Tribunal’) against the inclusion of the expedited procedure statement in the s 29 notice (see s 32(3) of the Act). The notification date specified in the notice was 2 May 2012, with the four month period for objections closing on 2 September 2012. This four month closing day was moved to the next business day of 3 September 2012 (see s 36(2) of the Acts Interpretation Act 1901 (Cth)).
[4] At the four month closing day, the proposed licence was overlapped by two native title determination applications. One was the claim of the Amangu People (WC2004/002; WAD6002/2004) covering 27,388.6 square kilometres and overlapping the proposed licence by approximately 96.4 per cent. The Amangu People's native title rights and interests were entered onto the Register of Native Title Claims on 3 March 2005. The other was the claim of the Widi Mob (WC1997/072; WAD6193/1998) registered from 12 December 2011, covering 38,535.18 square kilometres and overlapping the proposed licence by 100 per cent.
[5] On 29 August 2012, an expedited procedure objection application was lodged with the Tribunal in respect of the proposed licence by Frederick Taylor, Rod Little, Barry Dodd, Ross Oakley, Rob Ronan, Ruby McKinnon, Clarrie Cameron, Thomas Cameron, Malcolm Whitby, Ron Tolputt and Anita Farrell on behalf of the Amangu People (‘the native title party’). The objection application was received within four months of the notification day as required by s 32(3) of the Act. No objection application was made by the Widi Mob.
[6] On 28 September 2012, the objection application was accepted by former President Neate pursuant to s 76 and 77 of the Act. On 30 October 2013, President Webb appointed me to conduct the inquiry.
[7] The native title party’s objection application was listed in a preliminary conference held on 16 October 2012, followed by a number of status conferences between 28 November 2012 and 26 June 2013. Directions were first issued on 8 January 2013, requiring parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted according to the criteria in s 237 of the Act. Directions were amended on 5 July 2013, 19 August 2013 and 2 September 2013.
[8] In compliance with the Directions issued 5 July 2013, the Government party provided its contentions and evidence on 5 August 2013. In compliance with the amended directions of 19 August 2013, the native title party provided its contentions and evidence on 23 August 2013 and the grantee party provided its contentions and evidence on 30 August 2013. In compliance with the amended directions issued 2 September 2013, the Government party provided its contentions and evidence in reply on 20 September 2013.
[9] A listing hearing was held on 3 October 2013, at which parties agreed the inquiry could proceed ‘on the papers’ (as per s 151 of the Act), with the native title party given leave to provide a response to the Government and grantee party submissions by close of business the same day, and they did comply. The other parties were given leave to reply by 10 October 2013. The Government party submitted a reply on 10 October 2013. The grantee party indicated it did not intend to make further submissions. Noting the parties’ willingness to the matter proceeding on the papers and the nature of the material before me, I am satisfied the matter can be administered ‘on the papers’ as per s 151 of the Act.
[10] On 22 November 2013, the Tribunal provided parties with a copy of two maps, prepared by the Tribunal’s geospatial services, to be used for the purpose of this inquiry. No objections were received in response. The first map shows the proposed licence and relevant surrounding features such as Department of Indigenous Affairs (‘DIA’, now Department of Aboriginal Affairs (‘DAA’)) sites, any registered claim or determined areas, the underlying tenure and topography. The second map showed a closer view of the proposed licence boundary and underlying tenure.
[11] On 22 November 2013, due to the multiple and different versions of documents the Tribunal had been provided with (see, for example, at [24]-[25] and [28] below), I wrote to all parties, indicating I intended to use the most recent draft endorsements and conditions version dated 10 October 2013, and the most recent DAA extract of recorded sites dated 20 September 2013. All parties were provided with the opportunity to make submissions as to their view on this approach. No submissions were received.
Legal principles
[12] Section 237 of the Act provides:
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.
[13] In relation to s 237 generally, the legal principles and the consideration of the nature of exploration licences outlined by former Deputy President Sumner in Walley (at [7]–[23] and [24]-[35]) are adopted for the purpose of this determination (see s 146 of the Act).
[14] In relation to s 237(a), I adopt the legal principles outlined in Smith at [23] and [27].
[15] With respect to issues arising under s 237(b), I adopt the legal principles outlined in Maitland Parker at [31]–[38] and [40]-[41] (recently endorsed in Raymond Ashwin at [15]). I also adopt those principles set out by former Deputy President Sosso in Silver at [80]-[89].
[16] With respect to s 237(c), I adopt the description of the assessment required of the Tribunal as set out in Little at [41]-[47] and [52]-[54].
Government party contentions and evidence
[17] On 5 August 2013, the Department of Mines and Petroleum (‘DMP’) submitted the following documents to the Tribunal on behalf of the Government party:
(a)Aboriginal Heritage Inquiry System results extract published by DAA, dated 5 August 2013, listing three registered Aboriginal sites and a map of the sites within the proposed licence;
(b)A Tengraph Quick Appraisal published by DMP, dated 5 August 2013, showing topographical detail, tenement boundaries, historical land tenure and services affected within the proposed licence;
(c)A copy of the application for E70/4016; and
(d)Draft tenement endorsements and conditions extract for E70/4016, dated 5 August 2013.
[18] On 20 September 2013, the Tribunal received a statement of contentions from the State Solicitor’s Office (‘SSO’), together with:
(a)Annexure 1 – Map of the proposed licence;
(b)Annexure 2 - Tengraph Quick Appraisal Form for the proposed licence, dated 26 August 2013, showing topographical detail, tenement boundaries, historical land tenure and services affected;
(c)Annexure 3 – Aboriginal Heritage Inquiry System results extract published by DAA, dated 20 September 2013, displaying two registered sites, 15 ‘other heritage sites’ and a map of the sites within the proposed tenement; and
(d)Annexure 4 – Draft tenement endorsements and conditions extract for E70/4016, dated 26 August 2013.
[19] On 10 October 2013, a representative from DMP submitted an email clarifying the licensee’s ability to obtain access to freehold/private land under s 29(5) of the Mining Act and providing an updated copy of the draft tenement endorsements and conditions extract, dated 10 October 2013. As noted, this copy is relied upon for this determination.
[20] The Tengraph Quick Appraisal dated 26 August 2013 establish the underlying land tenure within the proposed licence consists of:
(a)Crown Reserves covering 9.5 per cent of the proposed licence in total (CR 11838 Trigonometrical Station covering less than 0.1 per cent; CR 40161 Conservation of Flora and Fauna covering 8.8 per cent; CR 29807 Conservation of Flora and Fauna covering 0.1 per cent; CR 51177 Railway - managed by Department of Transport covering 0.5 per cent);
(b)Railway (Tilley to Karara RCL/110) covering 0.5 per cent;
(c)CALM Purchased Lease (Lochada CPL/23 covering 5.3 per cent) (note that CALM was the Government Department responsible for Conservation and Land Management, renamed Department of Environment and Conservation);
(d)Timber Reserve (CTR 2 covering 23.7 per cent);
(e)Road Reserves (nine in total, up to a combined coverage of 0.9 per cent as each covers less than 0.1 per cent);
(f)Vacant Crown land (VCL 8532 covering 3 per cent and VCL 12726 covering 5.3 per cent and an unnamed VCL covering 0.1 per cent);
(g)Historical leases (HL 93/206 covering 35.1 per cent and HL 392/405 covering 24.7 per cent);
(h)Ten parcels of private land covering a combined total of 57.5 per cent of the proposed licence (PRV 203935/8582, PRV 202083/7876, PRV 212014/7889, PRV 210003/8543, PRV 202080/7877, PRV 148574/7715, PRV 253008/1485, PRV 150622/8624, PRV 150622/8571 and PRV 154275/8937); and
(i)A number of ecological buffer zones with various overlaps (between 18.2 and 77.8 per cent), all managed by the Department of Parks and Wildlife.
[21] The grantee party contentions (at 5) interpret the quick appraisal information to mean that 57.5 per cent of the proposed licence is freehold land (equating private land with freehold land). However, the Government party notes that, as per the definition of private land in s 8 of the Mining Act, private land includes freehold land, land subject to a conditional purchase agreement and most (but not all) leasehold lands. The Government party does not specify the proportions of each type of private land within the proposed licence. The distinction in the legislation is noted, though there is no evidence before me from any party disputing the grantee party’s interpretation. The Tribunal mapping is consistent, marking large areas as freehold land. There are various stipulations in the draft tenement endorsements and conditions extract in relation to specific underlying tenure.
[22] According to the Tengraph Quick Appraisal of 26 August 2013, current exploration activities over the proposed licence comprise: exploration licences E70/2227 (covering 0.8 per cent), E70/2433 (covering 28.2 per cent), E70/3615 (covering 100 per cent); and miscellaneous licences L 59/62 (covering 0.8 per cent), L59/76 (covering 1.9 per cent), L 70/126 (covering 2.6 per cent), and L 70/130 (covering 0.7 per cent). Past exploration activities over the proposed licence comprise seven former exploration licences (all now surrendered or expired and which covered between 19.3 and 72 per cent), a mining claim (59/1905) surrendered in 1972, and two temporary reserves, one covering the proposed licence by 92.1 per cent and the other by less than 0.1 per cent, both dead in the 1960's.
[23] The Tengraph Quick Appraisal of 26 August 2013 also displays a multitude of services which would be affected by grant of the proposed licence, consisting of: Ninghanboun Hill Variscite; SSM-Perenjori 28; 8 Minor Roads; 29 Tracks; one Ruin Symbolized; five Building Symbolized; six Fence Lines; two Feature Identification Dots; two Tanks; four Wells/Bores (Bowgarder, Ballarat, South Paradise and Paradise); nine Wells/Bores with windmill; two non-permanent Lakes; two Spring/Soak/Rockhole/Waterholes (Munthindea Rockhole and Mart Spring); and one Transmission Line. The Quick Appraisal of 5 August 2013 also includes services affected of 23 Minor Watercourses and four more non-permanent lakes.
[24] The most recent results extract from the DAA Aboriginal Heritage Inquiry System, generated 20 September 2013, indicates there are 17 recorded sites consisting of two registered sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA) and 15 ‘other heritage places’ (of which the status can be Insufficient Information, Lodged or Stored Data) within the proposed licence (further information is outlined at consideration of s 237(b) in this determination).
[25] In relation to the 17 recorded DAA sites, the DAA extracts provided by parties vary. The DAA register extracts provided by the Government party through DMP (dated 5 August 2013) and the native title party (dated 18 June 2012) show three registered sites, inclusive of the registered Site ID 5405 Causeway Quartz Quarry. The grantee party has also relied on that information, referring to three registered sites in its contentions. However, the DAA extract provided by the Government party through the SSO, dated 20 September 2013, displays only two registered sites (that is, Site ID 5405 Causeway Quartz Quarry is not a registered site, as it is listed as an ‘other heritage place’). For the purposes of this inquiry, the most current DAA extract (that is, 20 September 2013 extract) displaying two registered sites and 15 ‘other heritage places’ sites shall be relied upon for this decision-making process. Where parties have referred to ‘registered sites’, their arguments shall be taken as applying to the following registered sites: Site 24380 Mongers Lake Waterway and Site 26064 KML PIC Artefacts 202.
[26] In addition to the sites listed on the DAA Register extract, Tribunal mapping indicates: some sites (Site ID 5406, 26066, 21388, 26058) are located just outside the proposed licence at the north-eastern corner; several sites are located near the proposed licence at the south-western corner (Site IDs 5371, 5368, 5534, 5373, 5372); and there are other sites located sporadically and near the proposed licence. Sites outside the proposed licence, whether registered or not, can be taken into account where it is likely they would be affected by the grant of the proposed licence (see Silver at [89]-[90]). The native title party refer to Ben Ward (at [4]), in which Member Sumner (as he then was) found a sacred site to be of particular significance due to the evidence of cultural business, dreaming stories and danger associated with the site, in support of the possibility of grant of a proposed licence directly interfering with a site outside the proposed licence. However, they do not make any links between the proposed licence and sites outside of it in the present matter.
[27] The Government party notes there are no Aboriginal communities with the proposed licence and this is sustained by Tribunal mapping. No party has suggested otherwise.
[28] The Government party sets out that the initial grant term of five years is renewable according to s 61(2) of the Mining Act and also sets out the rights attached to an exploration permit, as per s 66 of the Mining Act. The Government party intends to impose the endorsements and conditions set out in the draft tenement endorsement and conditions extract dated 10 October 2013. Noting that the Government party supplied three different copies to the Tribunal, the most recent version as provided and generated on 10 October 2013 shall be relied upon, as all parties had the opportunity to read and reply to those. Those endorsements and conditions are outlined in Attachment A to this decision.
[29] In relation to the proposed RSHA, the Government party states that it will place the ‘proposed RSHA condition’ on the grant of the proposed licence as follows:
In respect of the area covered by the licence the licensee, if so requested in writing by the Amangu People, the applicants in Federal Court application No. WAD 6002 of 2004 (WC04/2), such request being sent by prepaid post to reach the licensee’s address, c/- McMahon Mining Title Services Pty Ltd, 28/168 Guildford Rd, Maylands WA 6931, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Amangu People the Regional Standard Heritage Agreement (‘RSHA’) endorsed by peak industry groups and the Yamatji Marlpa Aboriginal Corporation
Native title party contentions and evidence
[30] On 23 August 2013, the Tribunal received a statement of contentions, together with the following documents from the native title party’s representative:
·Annexure 1 - Map of the proposed licence and E70/3615 displaying original application area for E70/3615 and post-excise area for E70/3615 (I note that the original application area for E70/3615 included the area which is now E70/4016; see [33] below);
· Annexure 2 – Map of original area of E70/3615 prepared by DMP (which appears to have been produced in 2010);
· Annexure 3 - Affidavit of Mr Reginald Brockman (reproduced at Attachment B of this decision) affirmed 23 August 2013 with the following documents:
(i) RB 1- Map produced by the Tribunal’s Native Title Vision program of proposed licence area, dated 23 August 2013; and
(ii) RB 2 - A copy of a DIA Aboriginal Heritage Inquiry System (report dated 18 June 2012) showing 3 registered sites and 14 ‘other heritage places’ (Note: current information indicates there are two registered sites only, as outlined at [24]-[26] above)
· Annexure 4 - Affidavit of Mr Michael Edwards (reproduced at Attachment C of this decision) affirmed 23 August 2013 with the following documents:
(i) ME 1 - Map produced by the Tribunal’s Native Title Vision program of proposed licence area, dated 23 August 2013;
(ii) ME 2 - A copy of a DIA Aboriginal Heritage Inquiry System (report dated 18 June 2012) showing 3 registered sites and 14 ‘other heritage places’ (Note: current information indicates there are two registered sites only, as outlined at [24]-[25] above); and
(iii) ME 3 - Email dated 16 August 2013 from Ms Morrell of the grantee party representative to the Tribunal and other parties indicating grantee party’s opposition to the native title party’s extension request regarding compliance dates for this objection application.
[31] In relation to Mr Brockman’s affidavit, he deposes he is a member of the native title claim group and a member of the Amangu Working Group and is authorised to make the affidavit in support of the native title party’s contentions. He states he grew up on Lochada Station, very close to the proposed licence. He states he knows the proposed licence area well, as supported by his viewing of the map accompanying his affidavit (RB 1) and his visit to the specific proposed licence area on 22 August 2013 with Mr Edwards, as well as an anthropologist and a staff member associated with Yamatji Marlpa Aboriginal Corporation. I accept Mr Brockman is authorised to give evidence for this matter.
[32] Mr Edwards' affidavit states he is a member of the claim group and a member of the Amangu Working group. He grew up around Mingenew and states he knows the area of the proposed licence very well from his youth and present days. His evidence is given in conjunction with viewing a map of the proposed licence area accompanying his affidavit (ME1) and he visited the specific area on 22 August 2013 as described in the above paragraph. I also accept his evidence in this matter.
[33] The native title party’s contentions (at 6-29) dealt with a procedural matter, describing that blocks forming part of the proposed licence were previously subject to a prior application (E70/3615) which temporarily overlapped the native title party’s claim area. The application was granted after it was reduced so it no longer overlapped the native title party’s claim area. The native title party claims (at 27) that those past events indicate a willingness on the part of the grantee party to act without due regard to the concerns, rights and interests of the native title party. The grantee party has asserted that the circumstances of E70/3615 do not concern the present inquiry, a position supported by the Government party. I accept that position in the circumstances and do not believe anything turns on the grantee party applying for an exploration licence over an area of land which had been excised from a previous application. The grantee party is exercising its procedural right to apply for such licences, as could any prospective explorer.
[34] On 3 October 2013, the native title party submitted a statement of contentions in reply. In its reply, the native title party submits that neither the grantee party nor the Government party has given evidence in relation to vesting or possible extinguishment of the land interests set out in the Tengraph Quick Appraisal. The native title party requests the Tribunal proceed on the basis that there has been no extinguishment, referring to Strickland at [22] in support for the principle that ‘where the law is unclear it is not practical to take into account the possibility of extinguishment in future act proceedings’ (at 17 of the native title party reply). The paragraph which the native title party quote from Strickland goes on to say 'For the purpose of future act proceedings the Tribunal will proceed on the basis that, as a matter of law, there has been no extinguishment of native title by virtue for instance of the granting of pastoral leases or prior mining tenements. This does not mean that the Tribunal cannot look at the practical effect of activities such as pastoral or mining activities as a matter of fact’.
Grantee party contentions and evidence
[35] On 30 August 2013, the grantee party representative submitted a statement of contentions, together with four plans generated from DMP’s Tengraph online database as follows:
(a)Plan 1 – Plan showing the proposed licence boundary, freehold land, Nature Reserve 40161, Trigonometrical Station 11838, Timber Reserve, Conservation Reserve 29807 (conservation of flora and fauna) and the Lochada CALM purchased lease;
(b)Plan 2 – Plan showing the proposed licence boundary and the native title party’s claim boundary;
(c)Plan 3 – Plan showing eastern boundary of the proposed licence and the native title party’s claim boundary as well as the coordinates of certain registered sites; and
(d)Plan 4 - Plan showing eastern boundary of the proposed licence and the native title party’s claim boundary as well as the outline of Lake Weelhamby and Conservation Reserve 29807.
[36] In relation to Plan 1, the native title party draws the Tribunal’s attention to the fact that Conservation of Flora and Fauna Reserve 40161 and the timber reserve CTR 2 are highlighted the same colour in Plan 1, and are thus indistinguishable; this is regarded by the native title party as an over-simplification of tenure and the native title party accepts it only to the extent that it relates to condition 5 in the draft conditions and endorsements extract (which is actually condition 6 in the most recent version provided by the Government party, as explained at [28] above). See also further commentary on this point at [64] below. Beyond that confined purpose, the native title party raises the differing legal status of those two types of reserve. I accept this distinction.
Interference with community or social activities – s 237(a)
Evidence provided
[37] The native title party contends the area within the proposed licence is important for social and community activities, such that the grant of the proposed licence may cause direct interference with those activities. The native title party contends that it carries out the following activities within the proposed licence:
(a)Camping (see paragraph 10 of Mr Edwards’ affidavit);
(b)Passing on information about country and important places (at paragraph 11 and 23 of Mr Edwards’ affidavit);
(c)Hunting - members of the native title party hunt approximately once per month within the proposed licence as it is regarded as a good area for that purpose (at paragraph 9 and 23 of Mr Edwards’ affidavit);
(d)Collecting bush tucker (see paragraph 9 of Mr Edwards’ affidavit);
(e)Using wood from trees to make items such as boomerangs and shields - for example, using the Shukabrother tree for making spears currently, and for carry basket's in 'the old days' (at paragraph 15 of Mr Brockman’s affidavit).
[38] In terms of camping, hunting and gathering activities within the proposed licence, Mr Edwards’ affidavit describes recent activity as follows:
9. There is a big Aboriginal camping ground in that area. When I was young people camped near the fresh water and hunted Emu, Kangaroo and Goanna. These animals are there in that area even today. In all that bush land around there. People go there to get bush tucker like yams and Bimba which is a sweet tree sap like honey comb. It hangs down from the tree. We found some when were [sic] there the other day (on 22 August) because it is in season now with the rains. If people go around cutting trees without talking to us, all that bush tucker will be destroyed.
10. I know the area covered by the tenement and the surrounding area very well. We used to camp all over that area when I was young. I still go out there now whenever I get the chance. I have been there several times with Regi and other people. There are great places to camp all over that Tenement and many people still go out there.
[39] The camping activity is also described in Mr Brockman’s affidavit as he states he camps within the proposed licence approximately twice per year with a group of his children and grandchildren, and knows of many other people camping in the proposed licence.
[40] Mr Brockman also describes hunting activities, as during his camping trips he goes hunting for kangaroo, emu, goat and goanna as it is ‘a good area for hunting’ and is one of the few areas left within the Amangu claim area where hunting is possible, due to surrounding mining activity (at paragraph 10-11 of his affidavit). In terms of bush tucker, Mr Brockman describes collecting yams, bardies and edible seeds and finding Bimba (sweet edible sap). He is concerned that the food in that area will diminish if vegetation is destroyed if the proposed licence were to be granted (at paragraphs 12-13 of his affidavit). He refers to the water source provided by Wheelhamby Lake and Mongers Lake, attracting animals to the area (at paragraph 20 of Mr Brockman’s affidavit). Mr Brockman also describes the existence of malleefowl in the proposed licence (at 28) and rare species of bird (at 19), but they are not mentioned in relation to hunting or other specific community or social purposes.
[41] In terms of teaching activities, Mr Edwards describes Amangu people and other tribal groups going to the proposed licence area with ‘their oldies and their children so that the oldies can teach the young kids what the place means to them’ (at 11). Mr Brockman describes the need to carry out teaching activities in the corroboree ground near the Bowgada caves; it is a place for passing on knowledge to younger generations as it is where people would meet and have corroborees in the past (at 22-23). I am not clear, though, as to the location of these caves or the corroboree ground, although native title party contentions suggest it may be the area over a reserve (see [56] below).
[42] The grantee party asserts that direct interference with the community and social activities is unlikely due to the following: the impact of the conditions and endorsements for grant of the proposed licence under the Mining Act; its purported willingness to assume further obligations beyond what is required under law (which I assume refers to the proposed Regional Standard Heritage Agreement (‘RSHA’) - see [72]-[74] below); and the fact that it has not sought surface rights in relation to the freehold land (only sub-surface rights have been sought). The grantee party have not, however, drawn the Tribunal's attention to where this distinction in relation to rights sought can be verified. In addition, I note in the endorsements and conditions extract provided on 10 October 2013, there is no condition regarding freehold land and sub-surface activity, whereas the draft extract of 5 August 2013 from DMP (not to be relied upon; see [11] above) has a relevant endorsement at 2, namely 'The grant of this Licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land'.
[43] In relation to the grantee party’s assertion that only sub-surface rights are sought in relation to freehold land (comprising 57.5 per cent of the proposed licence), the native title party notes that the grantee party has not explicitly stated it will not undertake exploration activity within the freehold areas and it has not excised the freehold areas from its tenement application. The native title party also suggests that surface exploration is more likely to take place in the non-freehold portions of the proposed licence, which are the areas where community and social activities have been interfered with to a lesser extent (that is, the native title party are potentially more active in non-freehold areas). They suggest this results in an increased likelihood of direct interference with native title party social and community activities. The Government party reply outlines that the grantee party could still potentially access the freehold land for exploration if the owner/occupier agrees (see s 29(5) of the Mining Act). The native title party responded by suggesting that the necessary agreement from the owner/occupier in relation to s 29(5) of the Mining Act supports its proposition that it is less likely exploration will occur within the freehold/private land.
[44] The grantee party refers to past and present restrictions on activities within the relevant land (referring to previous tenements, the existence of freehold land, reserves and the railway corridor) in support of likely restrictions on the grantee party’s activities within the proposed licence. The grantee party also suggests that the native title party’s activities are already subject to or coexistent with the lawful activities of the owners of freehold land and the reserves.
[45] In relation to the argument concerning past mining/exploration activity and underlying tenure, the native title party submits that evidence of tenure does not in itself demonstrate the likelihood of interference. The native title party also objects to the grantee party’s reliance on the argument that existence of reserves will increase the likelihood of interference. In support, the native title party refers to Cazaly Iron, in which Deputy President Sumner stated ‘the majority of the area is unallocated crown land and the remainder a pastoral lease purchased by the Department of Environment and Conservation for the conservation of flora and fauna, suggesting little impediment to any community or social activities of the native title party’ (at [41]).
[46] In relation to the contention regarding past mining/exploration interfering with native title party social and community activities, the native title party submits the Tribunal should not be persuaded, when the nature and extent of past or continuing mining activities is not divulged, referring to Money at [54]. In Money, Member Stuckey-Clarke, at [54], stated:
The grantee has not led any evidence as to the extent to which he intends to exercise his rights under the exploration licences. However, the grantee has asserted that there has been previous mining exploration activity of an unspecified nature "(i)n the large majority of the area contained in the application" under certain exploration licences. There has been no attempt to support those assertions by documentary evidence which would have been readily available as to the nature and extent of any previous mining activities on any part of the tenements. In those circumstances, I give no weight to the grantee’s assertions as contradicting the objectors’ evidence as to their community and social activities on the tenements and in assessing the likelihood of direct interference therewith by the proposed mining activity.
[47] The Government party agreed with the grantee party’s arguments, as outlined at [72] below, in relation to the RSHA the impact of the current tenure restricting the grantee party’s activities and the native title party’s activities being subject to or co-existent with lawful activities of the land owners. The Government party also asserts that interference with native title party social and community activities is unlikely due to:
(a) the grantee party’s assertions of low-impact activities and for ground disturbing activities to be carried out in a way which is respectful of cultural heritage concerns;
(b) the fact that the Environmental Protection Act 1986 (WA) prohibits the clearing of vegetation without permission (as outlined in the draft conditions and endorsements extract);
(c) the Government party cannot see a reason why the low-impact activities would cause any greater disturbance to the wildlife than already exists;
(d) prior mineral exploration and possibly mining activity would have already affected the extent to which the native title party can carry out their community and social activities, thus limiting the impact of the grant of the proposed licence; and
(e) Mr Brockman’s assertion that the grant of the proposed licence would restrict the access of the native title party to the proposed licence area is not accepted by the Government party, noting that an exploration licence does not confer upon the grantee party a right to control access to land.
Consideration
[48] Section 237(a) of the Act requires an assessment as to whether community and social activities exist according to the evidence, and also an assessment of the likelihood of the grant of the proposed licence causing direct interference with community and social activities. On the facts, the likelihood of interference is largely affected by the impact of the underlying tenure. There are some areas the grantee party would not necessarily be accessing (that is, freehold or certain reserves) and associated limitations on access given the endorsements and conditions upon grant.
[49] The evidence of the native title party has established that various community and social activities occur within the proposed licence, though it is difficult to ascertain the location of these activities in order to analyse interference in terms of considering underlying tenure. In the case of camping, Mr Edwards has suggested an element of coverage across the whole of the proposed licence, as he stated there are great places to camp ‘all over the tenement’ where people still go (at paragraph 9 of his affidavit). Mr Brockman also specifically referred to some teaching activities occurring in the corroboree ground near the Bowgada caves; however, it is not clear where that area is in relation to the proposed licence (see, for example, further commentary on the location of the caves at [65] below). In the case of hunting, Mr Brockman refers to animals being attracted to the water source of Wheelhamby Lake as an important factor. I note the Lake falls outside the proposed licence, though it is possible animals visit the proposed licence more regularly due to its proximity to the Lake. The remainder of evidence is in relation to the proposed licence generally, rather than specific activities within areas of the proposed licence.
[50] The assessment of the likelihood of interference with the native title party community and social activities in this matter has been complex, given the variety of underlying tenure which may have already interfered to some extent with native title party activities. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at [26]).
[51] The assessment is also contextual, taking into account other factors which may have already impacted on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at [27]). I accept such activities may have been increasingly restricted, over the years, by mining activities on the native title party claim area. However, no specific evidence has been led to support that contention. The affidavit evidence suggests some trees and flora are important for making wooden implements and for the collection of bush tucker - I note that endorsement 4 protects native vegetation from damage unless prior permission is obtained. I appreciate that activities such as camping are likely to occur on or near the proposed licence, as well as hunting, given the proximity of the proposed licence to Wheelhamby Lake. However, it does not appear that the activity is such that the grantee party and native title party are likely to intersect in a way which would directly interfere with those activities in a substantial way.
[52] I conclude that the grantee party, in lawfully exercising its rights under the terms of the grant, is unlikely to cause direct and substantial interference with the social and community activities of the native title party as characterised in this matter.
Interference with sites or areas of particular significance – s 237(b)
Evidence provided in relation to the existence of any sites of particular significance
[53] The DAA results extract provided by the Government party dated 20 September 2013 indicates there are two registered sites within the proposed licence. The details, as per the DAA extract, and the location and underlying tenure according to Tribunal mapping, are as follows:
(a)Site 24380 Mongers Lake Waterway (Mythological type and closed access) is very large, covering approximately 3,541 square kilometres. The part of the site that falls within the proposed licence (in the north east portion) also overlaps the claim area and is located over various tenure types (timber reserve, nature reserve, unallocated state land and freehold);
(b)Site 26064 KML PIC Artefacts 202 (Quarry, artefacts/scatter type and open access). It is located at the north east edge of the proposed licence, but outside the native title party claim area; the underlying tenure is timber reserve.
[54] The DAA results extract also shows there are 15 DAA sites categorised as ‘other heritage places’ (of which the status can be Insufficient Information, Lodged or Stored Data) and all are open access. The details of each according to the DAA results extract, and the location of each site in terms of underlying tenure and the native title party’s claim boundary, as per Tribunal mapping, are as follows:
(a)Site 5369 Bore Hole Quartz Quarry (quarry type and ‘insufficient information’ status). This site is within the claim area and on freehold land;
(b)Site 5372 Kooldesak Gnama Hole (artefacts/scatter type and ‘insufficient information’ status). This site is within the claim area and on freehold land;
(c)Site 5373 Kooldesak Outscrop (artefacts/scatter type and ‘insufficient information’ status). This site is within the claim area and on freehold land;
(d)Site 5378 Ngaamangha Rockhole (artefacts/scatter type and ‘insufficient information’). This site is within the claim area and on freehold land;
(e)Site 5381 Ngaamangha Well (artefacts/scatter type and ‘insufficient information’ status). This site is within the claim area and on freehold land;
(f)Site 5392 Bowgarder Soak (artefacts/scatter type and ‘insufficient information’ status). This site is within the claim area and is on freehold land;
(g)Site 5397 Ballarat Well (artefacts/scatter type and ‘insufficient information’ status). This site is within the claim area and the underlying tenure is timber reserve;
(h)Site 5399 Claypan (artefacts/scatter type and ‘Stored Data’ status). This site is within the claim area and the underlying tenure is timber reserve;
(i)Site 5405 Causeway Quartz Quarry (quarry type and ‘stored data’ status). This site lies outside the claim area and the underlying tenure is timber reserve;
(j)Site 20291 Morrawa Caves (painting type and ‘lodged’ status). This site is within the claim area and the underlying tenure is nature reserve 40161;
(k)Site 26061 Haul Road Stone Arrangement Two (man-made structure and ‘insufficient information’ status). This site is within the claim area and the underlying tenure is timber reserve;
(l)Site 26797 K2LNAS004 (artefacts/scatter type and ‘stored data’ status). This site lies outside the claim area and the underlying tenure is timber reserve;
(m)Site 29344 Karara Power 01 (artefacts/scatter type and ‘insufficient information’ status). This site lies inside the claim area and the underlying tenure is mostly unallocated state land and some freehold land;
(n)Site 29345 Karara Power 02 (artefacts/scatter type and ‘insufficient information’ status). This site lies inside the claim area and the underlying tenure is unallocated state land; and
(o)Site 29710 Wheelhamby Artefact Scatter 1001 (artefacts/scatter type and ‘lodged’ status). This site is within the claim area and on freehold land.
[55] The native title party regards the proposed licence area as an ‘area rich in sites’, including the 15 sites recorded with the DAA above which are inclusive of ceremonial grounds, camping grounds (which often encompass burial sites), numerous artefacts, stone arrangements, springs, rock holes and watercourses.
[56] Apart from these recorded sites, the native title party describes the proposed licence area as being located over a ‘nature reserve of undisturbed bushland and includes the Bowgada Caves and an adjacent ceremony ground, which are regarded as sites of particular significance to the native title party’ (at 35 of the native title party contentions, and also referred to at 39 and 46 of those contentions). Mr Edwards describes the Bowgada caves as ‘one of the main important sites’, which are ‘a series of caves on an outcrop which overlook the old corroborree ground’ (at paragraph 13; also in Mr Brockman’s affidavit at paragraphs 20-21). ‘They are important stopping places not just to us Amangu people but for Badimia and Wajarri people too’ (at paragraph 13). He is concerned disturbance would be caused to paintings and engravings within some of these caves (some of the paintings were viewed by Mr Edwards as recently as August 2013) if the grantee party access the caves without proper knowledge (at 14).
[57] The native title party also contends there are many more sites within the proposed licence which are not recorded with the DAA Register, including caves, paintings, rock holes and artefacts (at paragraph 12 of Mr Edwards’ affidavit and paragraph 18 of Mr Brockman’s affidavit). Mr Edwards’ affidavit (at 14) and Mr Brockman’s affidavit (at 24), describe caves of special importance located all through ‘the hills’, containing paintings in the granite and breakaways. Mr Edwards supports his assertion of their importance by describing previous efforts to fence off these areas. The hills appear to be associated with the caves, and the caves overlook the corroboree area.
[58] Mr Edwards also described concerns about the destruction of water catching areas along the top of the hills ‘where old people made holes in the rock to catch water’ (at paragraph 17 of his affidavit). The water holes which are located outside of the caves are stated to be significant as a water supply for the Amangu People (at paragraph 18 of Mr Edwards’ affidavit and paragraph 25 of Mr Brockman’s affidavit) and Mr Brockman refers to the likelihood that the soft ground near the camping grounds is likely to contain burials (at 26), although it is not clear specifically where the soft ground is in relation to the camping ground.
[59] Also, Mr Brockman describes the importance of Weelhamby Lake and Mongers Lake as the water source attracts animals which are important for hunting purposes (at paragraph 20 of his affidavit). I note that Weelhamby Lake crosses into the proposed licence in the north east, and runs along very near to the northern part of the eastern boundary to the proposed licence. This area is not within the native title party claim area. Mongers Lake, on the other hand, is some 30 kilometres to the south east of the proposed licence.
[60] Mr Edwards also describes artefacts ‘all throughout the tenement area’ and several scarred trees at the western part of the proposed licence, some of which are recorded with DAA (at 21-22). The native title party states ‘as many of the sites are unregistered, the grantee party will be unable to avoid them without consultation with the native title party’ (at paragraph 45 of the native title party contentions).
Evidence provided in relation to whether interference is likely
[61] The grantee party refers to the location of each registered DAA site in terms of underlying tenure in support of its viewpoint that interference is unlikely under s 237(b).
[62] In relation to the site 5405 Causeway Quartz Quarry (the grantee party refers to it as registered, but the most recent State Solicitor’s Office DAA extract indicates it is an ‘other heritage place’) the grantee party states it is located outside both the proposed licence and the native title party’s claim area. The Tribunal mapping indicates it lies within the proposed licence, but does fall outside the claim area.
[63] In relation to registered Site 26064 KML PIC Artefacts 202, the grantee party states that it is located within the proposed licence, but outside the native title party’s claim area, as is also reflected in Tribunal mapping.
[64] In relation to registered site 24380 Mongers Lake Waterway, the grantee party notes coordinates for the site are unavailable and states:
(a) Lake Wheelhamby and a buffer zone appear to be covered by the registered site;
(b) This lake falls largely outside the area of intersection of the native title party’s claim and proposed licence;
(c) The area over which the proposed licence, native title party claim and Lake Wheelhamby intersect is within an A Class Nature Reserve; and
(d) The remaining area of the registered site (that is, excluding points (a)-(c) above) is over either freehold land (over which the grantee party has only sought sub-surface rights), Reserves (over which exploration is subject to Ministerial consent) or the CALM purchased pastoral lease (over which additional tenement conditions will be applied). According to Tribunal mapping, this site overlaps the proposed licence, along the eastern border (by between 1-3 kilometres) and northern border by approximately two kilometres, and also includes a portion of unallocated Crown land which intersects with the proposed licence, the claim area and the Mongers Lake Waterway site.
[65] In relation to the non-registered DAA recorded sites (that is, ‘other heritage places’), the grantee party notes the Bowgada Caves are stated to be over a nature reserve, though the native title party reply disagrees (at 30-32). The native title party contentions (at 35) indicate the proposed licence is over a nature reserve and that the proposed licence includes Bowgada Caves. The Government party states the boundaries of the caves area are not clearly explained in affidavit evidence such that it is unclear whether the Bowgada Caves site lies wholly or partly within the proposed licence, or whether it lies within the proposed licence at all. Reading the native title party contentions and the affidavits together, it appears the caves are likely to lie within the proposed licence, on the Bowgada Nature Reserve, and be associated with hills and caves which are of particular significance to the native title party. It is not clear the extent to which this hills and caves area extends out of the Reserve area and onto the freehold land surrounding that Reserve, or onto the unallocated crown land which is in the northwest and the easterly portions of the proposed licence.
[66] The grantee party also states that the remaining ‘other heritage places’ are located on freehold land or nature reserves. However, the native title party takes issue with the holistic classification of the reserves, stating for example, that the Timber Reserve and the Nature Reserve cannot be treated as ‘identical tenures’ (at paragraph 33 of the native title party’s reply).
[67] The native title party contends that no evidence has been provided about the grantee party’s actions to provide protection to prevent interference (that is, no affidavits were provided and no contractual measures are in place). Mr Brockman states that important sites will be disturbed without relevant people walking the land and showing the grantee party where to specifically avoid (at paragraph 18 of his affidavit). The native title party also contends the grantee party has only divulged some of its proposed activities (at 43(b)). In relation to the grantee party’s assertion that ground disturbing work will be ‘broad based’ and of minor disturbance, the native title party argues this is inconsistent with the Cultural Heritage Due Diligence Guidelines 2011 (WA) published by the DIA, which lists two of the grantee party’s stated activities as beyond low impact (that is, hand-held drilling is defined as moderate impact and mechanised soil and core sampling as significant impact).
[68] The grantee party contends the grant of the proposed licence would not be likely to interfere with sites of particular significance due to: the operation of the AHA; the operation of the regulatory regime inclusive of the Mining Act; the grantee party’s offer to enter into an RSHA; the fact that it has not sought surface rights in relation to the freehold land; and the fact that it cannot access the reserves without ministerial consent.
[69] The Government party contends the grant of the proposed licence would not be likely to cause interference due to: the grantee party’s assertion the exploration activities will be low-impact and ground disturbing activities are to be conducted in a way so as to avoid impacting heritage sites; the native title party’s concerns about damage to vegetation, waterways and cave paintings are regarded as an overestimate of the grantee party’s proposed activities; the operation of the conditions and endorsements to apply to the proposed licence; the impact of prior mineral exploration and possibly mining activity; the impact of the underlying tenure (that is, private lands, Crown reserves, timber reserve and railway corridor); and the operation of the AHA and associated processes (noting that an Aboriginal site as per s 5 of the AHA will afford protection under s 17 AHA, of which Ministerial consent is required by s 18 before departing from s 17 AHA).
[70] In relation to draft condition 6 (in the most recent draft tenement endorsements and conditions extract - see [36] above), to the extent that the grantee party and Government party have attributed weight to the fact that certain reserves (Trigonometric Station Reserve 11838, Conservation Reserve 40161, Railway Reserve 51177 and Timber Reserve CTR 2) require Ministerial consent prior to exploration activity, the native title party contends this should be de-emphasised as there is no provision for the native title party to be consulted. In relation to the regulatory regime, the grantee party refers to the presumption of regularity (see Silver) which presumes the grantee party will conduct its activities lawfully in exercising rights under the grant of a tenement. The grantee party also refers to various conditions and endorsements in the draft tenement endorsements and conditions extract provided 5 August 2013 (which was replaced by the 10 October 2013 extract, with similar provisions to those referred to by the grantee party being conditions 1, 2, 3, 6, 10, 11, 12, 13, 14, 15, 16, 17, 19 and 20 and endorsement 1) in support of its viewpoint that interference under s 237(b) is unlikely. The grantee party outlines that its proposed exploration activities are typical for exploration licences, inclusive of field reconnaissance, geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and surveys. The grantee party also regards its ground disturbing work as of minor disturbance.
[71] In relation to the operation of the AHA, the grantee party raises that it has never been prosecuted under the legislation. The native title party (at 41-42) regards the application of the AHA as being generally protective but subject to exceptions on a case by case basis (referring to Globe Uranium at [34]). In this instance, the native title party regards the large number of recorded registered and ‘other heritage place’ sites and additional sites (non-recorded) as reducing the ability to rely on the assumption that compliance with the AHA would prevent direct interference under s 237(b).
[72] In relation to the proposed RSHA, the grantee party asserts that it would provide for heritage surveys to be conducted to locate sites and areas of significance in order to enhance avoidance. The Government party and grantee party outline that, under an RSHA, the grantee party would be required to: notify the native title party and provide detailed information about proposed on-ground works; consult about surveys of the land in relation to ground-disturbing works prior to carrying them out; carry out surveys with the participation of the native title party prior to commencing work in some circumstances; and consult the native title party before applying for consent under s 18 of the AHA. The difficulty with some of these points is that the grantee party have stated that, in their view, their exploration activities are minor in nature in terms of ground disturbing activity, which would mitigate against surveys being done.
[73] The grantee party states that the offer of the RSHA more than adequately ensures the grantee party is compliant with existing law and policy and further, that the grantee party is willing to impose additional obligations on themselves by virtue of entering into this RSHA (at 12). In response, the native title party notes that the RSHA has not been offered to the native title party, that it was offered to Widi Mob and not accepted by them and that there is no evidence of additional obligations, above the minimum requirement to offer an RSHA to one native title party overlapping the proposed licence. However, I note this argument may be superseded by the condition outlined in the Government party contentions (at 19), which clearly states the conditions will be offered to the Amangu people. Nonetheless, the native title party goes on to argue, that the RSHA terms do not afford the necessary level of protection for sites of particular significance, noting that access to the proposed licence is permissible without a heritage survey. As Member O’Dea noted in Allarrow (at [40]), the RSHA requires the conduct of a survey where ground disturbing activity is taking place and I note the grantee party asserts their activities will largely be non-ground disturbing.
[74] The grantee party states that it engaged in negotiations for an alternative heritage agreement with the native title party, but that those negotiations have not yet been successful.
[75] The contentions of the parties also show convergent views on referring to the area as ‘site rich’. This shall not be expanded upon, as ultimately all parties have agreed that the existence of sites of particular significance is a question of fact to be established by explaining such significance.
[76] The native title party disputes several of the Government party’s statements. The native title party notes that no evidence has been provided of the grantee party being willing to enter into an RSHA with the native title party; nor any evidence of an intention to conduct ground disturbing activities in a way not adversely impacting heritage sites and also respecting cultural concerns; nor any evidence of intention to conduct activities with cultural sensitivity. The native title party (at 44 of its reply) draws a comparison in the present facts to the Tribunal’s decision in Lake Moore Gypsum in which the expedited procedure was held not to apply. I acknowledge there are some similarities between the grantee party’s evidence and the factors outlined at [44] of Lake Moore Gypsum. However, as each determination of the Tribunal involves a weighing up of various factors, that finding by Member Macpherson was specific to his consideration of the particular evidence, which I must also do in this matter.
Consideration
[77] For s 237(b), the Tribunal is required to assess whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular significance to the native title party in accordance with its traditions. An area of particular significance must stand out in some way from other sites and have its significance explained (see Cheinmora at 34).
[78] In relation to the 17 DAA sites, the evidence has established that one registered site (Site 26064 KML PIC Artefacts 202) and two ‘other heritage place’ sites (Site 5405 Causeway Quarry Quartz and Site 26797 K2LNAS004) do not fall within the native title party’s claim area.
[79] Of the remaining 14 sites that do fall within the proposed licence and the claim area (one registered and 13 ‘other heritage place’ sites), the grantee party’s viewpoint that interference is diminished due to the underlying tenure being freehold or nature reserve is only partially applicable. For example, I note one of the sites (Site 29345 Karara Power 2) is over unallocated crown land and another site (Site 29344 Karara Power 1) is mostly over unallocated crown land, with a small portion overlapping freehold land. In addition, Mongers Lake Waterway (site 24380) is a vast closed site which overlaps the north and east portions of the proposed licence.
[80] My assessment under s 237(b) also applies to non-recorded sites, as the DAA register is not a conclusive representation of all cultural heritage sites in Western Australia, and the approach for s 237(b) allows for particular significance to be based on the evidence adduced rather than reliance on the DAA register. In relation to the non-recorded sites, specific evidence has been given as to the significance of Bowgada Caves, the ceremony ground adjacent to it, and the hills associated with the caves. I accept that these sites are of particular significance to the native title party according to the evidence provided. Mr Edwards also referred to artefacts being scattered all over the proposed licence.
[81] Even if Bowgada Caves lie entirely within the Reserve, given the close proximity of the proposed licence to Wheelhamby Lake, the significance of the hills and caves which are said to exist, and the artefact scatters, I accept it is likely there are sites of particular significance on areas of the proposed licence not subject to reserve or freehold land. The native title party also states the area was used extensively given its proximity to the Wheelhamby Lake. In addition, the nature of the large closed site of Mongers Lake Waterway, supports the finding that this is an area of special significance to the native title party and that there are sites of particular significance on and near the proposed licence. The nature and extent of the grantee party activities suggest that even where an RSHA is imposed, surveys may not necessarily be required, and so inadvertent interference could occur to sites of particular significance, without guidance from the native title party. On that basis, I conclude this is not an appropriate area for the Government party’s expedited procedure to apply, as there is a likelihood of interference with sites of particular significance to the native title party.
Major disturbance to land or waters – s 237(c)
Evidence provided
[82] The native title party did not provide contentions in respect of s 237(c).
[83] The grantee party (at 47) contends that major disturbance is unlikely to be caused as it will comply with the relevant law and policy and has offered to assume further obligations (by this I assume it is referring to its offer to enter into an RSHA or the State’s RSHA condition).
[84] The Government party notes the lack of evidence put forward by the native title party and outlines its position that major disturbance with the relevant land or waters is unlikely due to: the nature of the grantee party’s proposed activities (regarded as low-impact); the operation of the regulatory regimes in place in respect of mining, environment and cultural heritage; the rehabilitation measures set out in the conditions attached to grant of the proposed licence; the activities of the grantee party being no more cumbersome than the activities permitted by way of land owners with the underlying tenure or prior explorers/miners under prior tenements; and the apparent lack of any particular characteristics that would result in major disturbance.
Consideration
[85] Based on the lack of evidence provided by the native title party regarding this limb of s 237, I accept the Government party arguments, and conclude that interference in relation to s 237(c) considerations is unlikely.
Determination
[86] The determination of the Tribunal is the act, the grant of exploration licence E70/4016 to Black Peak Holdings Pty Ltd, is not an act attracting the expedited procedure.
Member Helen Shurven
12 December 2013ATTACHMENT A
ENDORSEMENTS
1.The Licencee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The grant of this licence does not include the land the subject of prior Exploration Licence 70/2227. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
3.The land the subject of this Licence may affect a Threatened Ecological Community. The Licencee is advised to contact the Department of Environment and Conservation’s Threatened Species and Communities Unit for detailed information on management.
4.The Licencee’s attention is drawn to the provisions of 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.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
5.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
6.The Licensee attention is drawn to the provisions of the:
·Waterways Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
7.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
8.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
9.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
10.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway, and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
CONDITIONS
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
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 program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, 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 rights of ingress to and egress from Miscellaneous Licence 59/62, 59/76, 70/126 and 70/130 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
6.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Trigonometrical Station Reserve 11838, Conservation of Flora and Fauna Reserve 40161, Railway & For The Purpose of Performing the Authority Reserve 51177 and Timber Reserve CTR 2.
7.No interference with Geodetic Survey Station PERENJORI 28 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8.No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
9.Mining on a strip of land 20 metres wide with any pipeline as the centreline being confined to below a depth of 31 metres from the natural surface and no mining material being deposited upon such strip and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
10.No mining within 30 metres of either side and to a depth of 15 metres of the Rail Corridor Land 110 Tilley To Karara Railway as shown in TENGRAPH without the prior written approval of the Minister responsible for the Mining Act 1978.
11.No surface excavation approaching closer to the boundary of the Safety Zone established by Condition aforementioned hereof than a distance equal to three times the depth of the excavation without the prior written approval of the State Mining Engineer, DMP.
12.Mining below 15 metres from the natural surface of the land in the Safety Zone established in Condition aforementioned hereof being approved by the State Mining Engineer, DMP in consultation with the operator of the railway on corridor land.
13.No interference with the drainage pattern, and no parking, storage or movement of equipment or vehicles used in the course of mining within the Safety Zone established by Condition aforementioned hereof without the prior approval of the operator of the railway on corridor land.
14.The Licensee not excavating, drilling, installing, erecting, depositing or permitting to be excavated, drilled, installed, erected or deposited within the Safety Zone established in Condition aforementioned hereof, any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever without the prior written consent of the State Mining Engineer, DMP.
15.No explosives being used or stored within one hundred and fifty (150) metres of the rail corridor land without the prior written consent of the Director, Dangerous Goods Safety Branch, DMP.
16.The rights of ingress to and egress from the rail corridor land being at all times preserved to the employees, contractors and agents of the operator of the railway on corridor land, and the Public Transport Authority of WA.
17.Such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 for the purpose of protecting the rail corridor land.
18.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained, with the concurrence of the Minister for Environment, before entering or commencing any prospecting or exploration activity on Conservation Of Flora and Fauna Reserve 29807.
In respect to the area designated as CPL 23 in TENGRAPH the following conditions apply:
19.Prior to any ground-disturbing activity, as defined by the Executive Director, Environment Division, DMP the licensee preparing a detailed program for each phase of proposed exploration for approval of the Executive Director, Environment Division, DMP. The program to include:
·maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
·the purpose, specifications and life of all proposed disturbances;
·proposals which may disturb any declared rare or geographically restricted flora and fauna; and
·techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances
20.The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the Executive Director, Environment Division, DMP. Such rehabilitation as is appropriate and may include:
·stockpiling and return of topsoil;
·backfilling all holes, trenches and costeans;
·ripping;
·contouring to the original land form
·revegetation with seed; and
·capping and backfilling of all drill holes.
21.Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.
ATTACHMENT B
Affidavit of Reginald Brockman dated 23 August 2013
I am a member of the Amangu Native Title claim group and I am also a member of the Amangu Working Group.
I am authorised to make this affidavit in support of the Native Title Party contentions that the grant of exploration licence E70/4016 (“The Tenement”) is not an act attracting the Expedited Procedure.
Unless otherwise stated, all of the matters deposed to in this affidavit are within my own knowledge and are true and correct.
The staff at Yamatji Marlpa Aboriginal Corporation (“YMAC”) have shown me a map with exploration licence E70/4016 (the Tenement Area) shown on it, a copy of this map is attached to this statement and marked “RB1”.
I also recently visited the location of the Tenement on 22 August 2013 with fellow Amangu claimant Michael Edwards, YMAC claim Anthropologist Barbara Ashford and YMAC CLO Daniel Shiosaki
I have authority to speak for the area covered by the Tenement and my family defer decisions about the land around this area to me.
I know the area covered by the Tenement and the surrounding area very well. I grew up around that area. When I was young, I lived on Lochada Station which is close to the area. My father worked on the station, he used to fix fences. My dad would take us camping to Bowgada every few months. We would camp out there.
People would have meetings in that area when I was young. There are a lot of great places for camping in the area of the Tenement. Many people still go camping out there. I go there with my family maybe twice a year. When I go, I take my children with me and my grandchildren. We go in a convoy with maybe 15 people at a time. I use the time to remind the children where they come from and to teach them about that place. It is important that this information is passed on. I also go there just to make sure that everything if alright and the country is healthy. I worry about all the mining out there because the heavy machinery scares away the wildlife, especially the birds.
I know that my sister and her husband who live in Morawa go out there more often because they live closer to the area. Her and her family go out there whenever they get a chance maybe once a month. They camp out there and go hunting. They hunt Emu, Kangaroo, Goanna and wild Goats. When they get meat, they take it back to the community and they share it out. They give some to the Elders and make sure nothing gets wasted.
When I go out there with my family, we camp out there for a few days over the weekend. We go hunting for Kangaroo, Emu, Goat and Goanna. That area is a good area for hunting.
There are few areas left to go hunting in the claim area now with all the farming and the mining. There are mining companies everywhere now restricting our access to the country. If more and more tenements are granted and the mining companies restrict our access to this area we would be very limited as to where we can go camp and hunt. Especially if the companies destroy the vegetation. There are not a lot of places left for us to go and enjoy the country in that area. As it is, a lot of companies have already opened up much of ground by clearing it of vegetation.
It is also good for collecting bush tucker. We collect yams, bardies and edible seeds. When we were there on 22 August, we found some Bimba which is a sweet edible sap. It hangs of the tree like honeycomb and the kids love because it is sweet.
That bush area is good for finding tucker like that. If this company starts clearing vegetation for their exploration without talking to us, I am worried that some of these trees will be chopped down and the tucker will be gone.
There are also trees in that area where people cut out part of the wood to make carry baskets in the old days. If the Company goes into that area and clears the vegetation, all those trees will be gone.
We also collect wood from there to make Boomerangs. We use the Shukabrother tree for making spears.
I am worried that if this company does not come and talk to us, we will have no way of protecting our way of life.
There are many important sites in the Tenement. Some of the sites are registered while others are not. Annexed to this affidavit and marked “RB2” is an Aboriginal Heritage Site Search result.
There are more sites in that area than are shown on the register. Some of the sites I have referred to lie on the outer part of that bushland but as you go deeper, you find more sites. I cannot pinpoint them without walking the land. If the company does not negotiate with is about the places they want to go, I am very worried that these sites will be disturbed. We need to walk the land with them to show them which areas to avoid.
There are also some rare species of birds in the nature reserve that will be disturbed by exploration activities, especially the clearing of vegetation.
Some of the important sites in the Tenement area are the Bowgada Caves breakaway and Wheelhamby Lake [Weelhamby Lake] and Mongers lake to name a few. These used to be fresh water lakes now they are turning salty. They provide water for the wildlife. People going through that country would have also stopped at those places. It is important that we protect the water ways because that is where the animals get their water. Without that water there, there would be no animals for us to hunt. I also worry that if the vegetation is cleared and exploration activities take place like drilling and having a lot of people there, the animals will be scared away and we will lose all that.
The Bowgada Caves are of particular importance to the Amangu People. They are a series of caves on an outcrop which overlooks an old corroboree ground. I have told my children about this place and my father told me about them.
My father took me to the corroboree ground near the caves when I was younger. Back then the old people used to have corroborees out there within that tenement area. Down in the flat ground is a large area where people would meet. You could hear them from a distance. There were hundreds of people there from different tribes. The corroboree ground was a meeting place for Yamatjis from all over, including Wajarri and Badimia people. It was usually some sort celebration. People would then camp in the caves along the ridge. It was a long time ago.
But we still want to protect this place so that we can pass on the knowledge to our younger generations. Several of us have tried in the past to have the area fenced off so nobody can go there and disturb the area.
Some of the caves have paintings and engravings in them and we do not want these paintings to be disturbed by miners going through the area unchecked. These aren’t the only caves in the area with paintings. There are paintings in the granite and breakaways all through the hills. These caves are very special to us.
Some of the caves have waterholes outside them, which are very significant to us. We don’t want miners going around polluting them and drying them up because we can’t live without water.
There are likely to be burials out there in the soft ground as it is close to camping grounds. We don’t want any remains disturbed. When I was young, the elders would tell you where not to go because you were not allowed there. In the same way, we want mining companies to talk to us so that we can tell them where not to go.
I know that if someone went there who wasn’t supposed to, then that person could get sick. Once I was out at the caves with Michael Edwards (“Buddy”) and other Amangu claimants. There were also some young women who were exploring around the caves and touching the handprints. By the time they got back to the car, they were very sick. They nearly had to be taken to hospital in Geraldton.
There are a lot of Malleefowl in the Tenement. It has some of the highest numbers of Malleefowl in the Midwest. They are very elusive so you won’t always see them but they are there. Once you scare them away with all that exploration and mining activity, they never come back to the area. We need to protect the Malleefowl because there aren’t too many left.
There are artefacts all throughout the Tenement because this was a place where our old people lived. A company wouldn’t know what they looked like if they were just walking through there and they would probably end up tripping over them or clearing trees like the Bimba and scarred trees.
I don’t want people walking around the area without some guidance. They can disturb our artefacts, or make us sick by going to places they shouldn’t be going. They might even get sick themselves because they don’t belong to this country. Amangu have a responsibility to protect that area.
ATTACHMENT C
Affidavit of Michael Edwards dated 23 August 2013
1. I am a member of the Amangu Native Title claim and I am also a member of the Amangu Working Group. People also call me “Buddy”.
2. I am authorised to make this affidavit in support of the Native Title Party’s contentions that the grant of exploration licence E70/4016 (“The Tenement”) is not an act attracting the Expedited Procedure.
3. Unless otherwise stated, all of the matters deposed to in this affidavit are within in my own knowledge and are true and correct.
4. The staff at Yamatji Marlpa Aboriginal Corporation (“YMAC”) have shown me a map with exploration licence E70/4016 (the Tenement Area) shown on it, a copy of this map is attached to this statement and marked “ME1”.
5. I also visited the location of the tenement on 22 August 2013 with fellow Amangu claimant Reginald Brockman (“Regi”), YMAC claim Anthropologist Barbara Ashford and YMAC CLO Daniel Shiosaki.
6. Regi is the main person to speak for this area; I listen to what he has to say about that area and I learn from him.
7. I remember travelling to that area when I was younger. I grew up around Mingenew. Back then there were Aboriginal people all over that area. Now we see a lot of mining camps everywhere. It made me upset when I was out there the other day (on 22 August) that people are just going and clearing that area without talking to us as Amangu people and getting our permission. If this Tenement is granted without negotiating with us, I am concerned that the same thing will happen, the land will be cleared and we won’t be able to protect our sites or way of life.
8. Often, companies will widen roads and cut down trees without asking us. They restrict our access to the country and they disturb things. So we don’t have a chance to protect what is important to us. So much of that area and other areas within our country have already been cleared and we want to protect what is left.
9. There is a big Aboriginal camping ground in that area. When I was young people camped near the fresh water and hunted Emu, Kangaroo and Goanna. These animals are there in that area even today. In all that bush land around there. People go there to get bush tucker like yams and Bimba which is a sweet tree sap like honey comb. It hangs down from the tree. We found some when were there the other day (on 22 August) because it is in season now with the rains. If people go around cutting trees without talking to us, all that bush tucker will be destroyed.
10. I know the area covered by the tenement and the surrounding area very well. We used to camp all over that area when I was young. I still go out there now whenever I get the chance. I have been there several times with Regi and other people There are great places to camp all over that Tenement and many people still go out there.
11. I know that a lot of Amangu and other tribal groups who live in Morawa go there often. They go there with their oldies and their children so that the oldies can teach the young kids what the place means to them. That way, the kids learn and the knowledge is passed on to the next generation.
12. There are also a lot of sites in that Tenement area. Some of them are registered and I have seen a Department of Aboriginal Affairs (DAA) site inquiry search which is also annexed and attached to this affidavit and marked “ME2”. There are many other sites that are not on the DIA site register. That is why it is important for the company to negotiate with us about the places they want to go so that we can make sure these sites are protected. We need to be there to show them which areas to avoid and to point out the things that are important to us.
13. One of the main important sites is the Bowgada caves. These are caves a series of caves on an outcrop which overlook the old corroboree ground. They are important stopping places not just to us Amangu people but for Badimia and Wajarri people too.
14. Some of the caves have paintings and engravings in them and we do not want these paintings to be disturbed by miners going through the area unchecked. We checked on some of these painting on 22 August to make sure they are still ok. We are worried that if the tenement is granted without negotiating with us, the company and its employees will not know which areas to avoid. People will wind up going there and damaging the sites especially if a camp is built close to the caves. The caves are quite close to the road so we are worried that a lot of people will wind up going there and touching things they should not be touching.
15. These aren’t the only caves in the area with paintings. There are paintings in the granite and breakaways all through the hills. These caves are very special to us.
16. I remember that some of us have tried to have the area fenced off so nobody could go there and disturb the area.
17. Along the top of the hills are some water catching areas where the old people made holes in the rock to catch water. We are concerned that these sites may be destroyed by people doing exploration who don’t know where and what things are. Especially if they start drilling for samples and cutting down trees.
18. The caves have waterholes outside them, which are very significant to us. We don’t want miners going around polluting them and drying them up because we can’t live without water.
19. People are also not supposed to take things like rocks from the area. Something might look like a rock or just a stick to a person who does not know but it could be an artefact and should not be removed from that place. If you take things from there or go where you are not supposed to and you are not from the country you go to, you might get sick.
20. Once I was at the caves with Regi and some other people. Some young girls explored up around those caves. They were playing in the caves and touching the handprints. By the time they got back to the car, they were very sick. We almost had to take them to hospital in Geraldton.
21. There are a lot on Malleefowl in the Tenement. They are shy birds so if you scare them away, they never come back to the area. We need to protect the Malleefowl because there aren’t too many left.
22. Our old people lived in that area so there are artefacts all throughout the Tenement. There are also several scarred trees at the west end. Some of these sites are recorded with DIA, but not all of them. A company wouldn’t know what they looked like if they were just walking through there and they would probably end up tripping over them or clearing the trees.
23. There used to be a lot of wildlife at Lochada but there is not as much now. I am worried that the same thing will happen over at Bowgada as well if companies don’t negotiate with us. If most of the vegetation is cleared over that area, the animals will leave and there will be nothing for us to hunt. If the caves are disturbed, we won’t be able to teach our children about these places.
24. I don’t want people walking around the area without some guidance. They can disturb things and make the traditional owners sick or maybe even get sick themselves.
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