Annie Milgin & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/142 East Pty Ltd
[2013] NNTTA 171
•9 December 2013
NATIONAL NATIVE TITLE TRIBUNAL
Annie Milgin & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/142 East Pty Ltd [2013] NNTTA 171 (9 December 2013)
Application No: WO2012/1148
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
Annie Milgin & Ors on behalf of the Nyikina & Mangala Native Title Claimants (WC1999/025) (native title party)
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The State of Western Australia (Government party)
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142 East Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 9 December 2013
Catchwords: Native title – future act – proposed grant of 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 is attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases:Butcher Cherel & Ors on behalf of Gooniyandi Combined #2/Western Australia/Richmond [2010] NNTTA 167, (‘Richmond’)
Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Image Resources NL, NNTT WO09/1024, [2010] NNTTA 99, ('Tucker')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little 1’)
Little v Western Australia [2001] FCA, ('Little 2')
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11, ('Swancove Enterprises')
Rosas v Northern Territory (2002) 169 FLR 330, (‘Rosas’)
Silver v Northern Territory (2002) 169 FLR 1, (‘Silver’)
Smith v Western Australia (2001) 108 FCR 442, (‘Smith’)
Ward v Western Australia (1996) 69 FCR 208 (‘Ward’)
Walley v Western Australia (2002) 169 FLR 437, (‘Walley’)
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72, (‘Goonack’)
Representatives of the Ms Zoe Ramsay, KRED Enterprises Pty Ltd
native title party: Ms Hayley Haas, KRED Enterprises Pty Ltd
Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government party: Mr Matthew L Smith, Department of Mines and Petroleum
Representatives of the Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd
Grantee party: Ms Iva Morell, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 17 October 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E04/2217 (‘the proposed licence’) to 142 East 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).
The proposed licence comprises an area of approximately 9.76 square kilometres located 92 kilometres west of Fitzroy Crossing, in the Shire of Derby-West Kimberley. The western portion of the proposed licence area is overlapped by the Nyikina and Mangala native title claim (WC1999/025 – registered from 28 September 1999). The area of the overlap between the proposed licence and the Nyikina and Mangala native title claim is 3.0673 square kilometres, or approximately 31.43 per cent. There are no other registered claims or determinations of native title within the relevant area.
On 25 October 2012, Annie Milgin, Rosita Shaw, Cyril Archer, Joe Green, Rona Charles, Anthony Watson, Harry Watson, David Banjo, John Watson and Robert Watson on behalf of the Nyikina and Mangala native title claimants (the native title party), lodged an objection application with the Tribunal in respect of the proposed licence.
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 allow a period after the closing date for the lodgement of objections 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 to occur. On
8 October 2013, the matter was referred to inquiry.
I was appointed by the President, Ms Raelene Webb QC, on 28 October 2013 as the member for the purpose of conducting the inquiry.
Following the submission of compliance documents, parties indicated 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 the matter can be adequately determined in that manner.
Legal principles
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.
In Walley, the Hon CJ 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 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] and [40]-[41].
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little 1, especially [41]-[57]).
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 Endorsement 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 tenure of the land within the proposed licence is as follows:
·Pastoral Lease (Blina) PL 3114/1271 overlapping at 68.6 per cent.
·Pastoral Lease (Liveringa) PL I087500 overlapping at 31.4 per cent.
·Petroleum Exploration Permit EP 371 R1 overlapping at 100 per cent.
·A live exploration licence overlapping at 100 per cent.
The quick appraisal indicated that the proposed licence area has previously been subject to twelve tenements, consisting of: one exploration licence (which overlapped at 100 per cent); five mining licences (which overlapped at between 0.5 and 12.3 per cent); and six temporary reserves (3 of which overlapped at 100 per cent). The earliest of these tenements was granted in 1920 and cancelled in 1921, and the most recent was the exploration licence granted in 1994 and surrendered in 1995. All of these tenements are now surrendered or cancelled.
The report from the DAA Database establishes that there are no registered Aboriginal sites within the proposed licence area. In its contentions, the Government party also indicates that the Aboriginal Heritage Inquiry System reveals there are no ‘other heritage places’ within the proposed licence area.
There does not appear, from the Government party’s documents or Tribunal mapping, to be any Aboriginal communities within the proposed licence area, and the Yungngora community is located about 47 kilometres to the south east.
The Draft Tenement Endorsements 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 contentions indicate that 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. The Government party notes that whilst the Kimberley Land Council does not have an RSHA, the condition they identify has previously been held by the Tribunal to have sufficient clarity about the agreement to which it refers (see Richmond at [46] and [64]-[65]).
Evidence of the native title party
The submissions of the native title party include a statement of contentions and a signed statement of Ms Rosie Mulligan dated 26 August 2013, with a map of the proposed licence and surrounding area attached.
In the contentions, the native title party asserts that grantee party activities on the proposed licence are likely to:
·interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land concerned;
·interfere with areas or sites of significance to the persons who are the holders of the native title in relation to the land or waters concerned; and
·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 support of these contentions the native title party relies on Ms Mulligan's signed statement. Ms Mulligan describes herself as a senior Nyikina woman, who has been asked to speak for the country which is subject to the proposed licence. I accept she has the authority to do so.
Evidence of the grantee party
On 4 September 2013, the grantee party provided a statement of contentions which includes a plan of the proposed licence area and results from searches of the DAA Database in relation to the proposed licence area.
In summary, the grantee party makes the following contentions:
·The overlap between the proposed licence and the Nyikina and Mangala Native Title Claim constitutes 31.4 per cent of the licence area, in its western portion;
·The proposed licence area is overlapped by two pastoral leases, Blina and Liveringa, and an exploration permit, PA67, as well as having previously been covered by previous tenements, therefore, it is likely that the rights and interests of the native title party are already subject to, or coexist with other lawful interests and activities;
·There are no Aboriginal communities situated on the proposed licence and, therefore, exploration activities are not likely to interfere directly with community or social activities;
·There are no registered Aboriginal sites located on the proposed licence and, therefore, exploration activities are not likely to interfere with sites of particular significance - where there are unrecorded sites of particular significance the grantee party will be governed by the Tenement Endorsement and Conditions of the licence, including relevant provisions and regulations of the Aboriginal Heritage Act 1972 (Aboriginal Heritage Act); and
·The proposed exploration activities are limited to the usual activities associated with exploration licences, including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and surveys. These activities are not likely to involve major disturbance to any land or waters, or create rights whose exercise is likely to involve major disturbance to any land or waters.
Considering the Evidence
Interference with community or social activities – s 237(a)
The Tribunal is required to make a predictive assessment as to 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: see Smith at [23].
The native title party contends that its community or social activities are a manifestation of its claimed native title rights and interests and, therefore, the mere existence of the grantee party on the proposed licence, in circumstances where there has been no negotiation or consultation, could be likely to give rise to a direct interference with the carrying on of community or social activities, citing the decision of Carr J in Ward.
With respect to the native title party’s reliance on the statements made by Carr J in Ward, I adopt the findings of DP Sumner in Swancove Enterprises at [22]. The 1998 amendments to the Act mean that Carr J’s statements are no longer applicable. Therefore, I do not accept that the presence of the grantee party on the proposed licence, of itself, constitutes a direct interference with the community or social activities of the group.
My assessment of s 237(a) must be contextual, taking into account factors that may already have impacted on the native title party’s community or social activities (such as mining or pastoral activity): see Smith at [27].
Ms Mulligan deposes that people from the Yungngora community go to the proposed licence area to hunt and practice ceremony. Further, she states that very close to the east side of the proposed licence is Jeromes Bore, which is a traditional place where her father and other group members would camp, practice ceremony and hunt. Ms Mulligan states because of special sites there, and because it is a traditional camp site, it is a special place for the community as a place of ceremony, as a hunting ground and as a place for teaching young people about Nyikina and Mangala culture. Ms Mulligan states that to the east of Jeromes Bore is a very good hunting place which is very good for finding sand frogs and that young people are also taught how to catch goanna, turkey and black head snake there. Ms Mulligan says that she and her family go hunting in the area of the proposed licence every week and that after school breaks they take the young people there every Friday.
Much of the evidence deposed by Ms Mulligan relates to hunting activities. I note that the Tribunal has previously determined that hunting and exploration activities are capable of coexisting, and that exploration activities would not necessarily constitute an act that would interfere directly with the carrying on of the native title party’s hunting activities.
The grantee party states there are no communities situated on the proposed licence area and that it is located more than 45 kilometres from the Yungngora Community at Noonkanbah. Further, the grantee party submits that Jeromes Bore, identified by Ms Mulligan as an area of significance, is located 500 metres outside the boundary of the proposed licence, and 4 kilometres outside of the boundary of the Nyikina and Mangala native title claim, and that other areas particularly identified in Ms Mulligan’s statement fall outside the proposed licence area, such as Emu Pool Bore.
The Government party also points out in its contentions that none of the areas referenced in Ms Mulligan's statement, as areas where community and social activities are carried out, fall within the area of the proposed licence. The Government party states the grant of the proposed licence subject to the proposed RSHA condition, if invoked by the native title party, will require the grantee party to notify, consult and carry out surveys with the native title party in relation to ground disturbing works. Further, the Government party contends the area of the proposed licence has been subject to prior mineral exploration activity and is entirely covered by pastoral leases and a petroleum exploration permit. They suggest this indicates the native title rights and interests of the Nyikina and Mangala native title claim group already coexist with other lawful interests within the proposed licence area, and have done so for a period of time. I agree that the underlying tenure outlined in DMP documentation supports this suggestion.
Ms Mulligan's statement does not identify, with any particularity, areas within the proposed licence and claim area overlap, where community or social activities of the Nyikina and Mangala are carried out. The areas specifically identified in the affidavit fall outside the proposed licence boundaries. However, I accept from statements made by Ms Mulligan, that members of the claim group carry out activities on the proposed licence/claim overlap area, including hunting, conducting ceremony and teaching young members of the group (at (16) - (17)), and also collect numerous natural plant resources from the area used for traditional healing and smoking ceremonies (at (22) –(28)). There is nothing in the evidence which suggests such activities are not done, or could not be done, outside the proposed licence/claim area overlap, and I do note the nearest Aboriginal community is some distance away from the overlap. In addition, the size of the proposed licence/claim area overlap is approximately 3.0673 square kilometres and the area of the native title party claim is approximately 26,215.58 square kilometres. Consistent with previous Tribunal decisions, including the Hon C J Sumner’s reasoning in Tucker, I find that the size of the proposed licence/claim overlap area in the context of the much larger native title claim area makes it less likely that exploration activity will interfere with community or social activities of the native title party.
I have considered the nature of the activities carried out by the native title party and also the prior and current interests held by various third parties, over a long period of time, in relation to the proposed licence area. I have also considered that the activities to be carried out by the grantee party will be exploratory in nature. In relation to these points, I accept past and present pastoral, exploration and mining activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous activities will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).
I am satisfied that it is unlikely that the grant of the proposed licence would interfere directly with the conduct of the social and community activities of the native title party on the area.
Interference with sites or areas of particular significance - s 237(b)
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or 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 stated above at [14], the DAA Database shows there are no registered sites in the area of the proposed licence, and no ‘other heritage places’. This does not mean there are no sites or areas of particular significance to the native title party within the proposed licence area or in the vicinity. The Register of Aboriginal Sites 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.
Ms Mulligan states the area of the proposed licence is a special place, and to the east and centre of the area there are very old boab trees. Ms Mulligan says there are song lines through the area which are sacred and which she is not able to speak of. Ms Mulligan deposes to the existence of ant pits, located in the east and centre of the proposed licence, that have been used by the native title party’s antecedents as burial sites, and which have sometimes been used to bury babies, and that it will mean 'a very bad thing' for their culture if these sites were damaged (at 37).
The grantee party submits that the existence of songlines and spiritual stories connected to the area as outlined by Ms Mulligan, do not meet the requirement at s 237(b) of having particular significance, but rather that the significance of songlines and stories is more general in character. In relation to the burial sites situated in ant pits and described by Ms Mulligan as being located to the centre and east of the proposed licence, the grantee party submits that they do not fall within the boundaries of the Nyikina and Mangala native title claim. The grantee party also states that any burial site located within the proposed licence would be afforded a high level of protection under the Aboriginal Heritage Act, to prevent any interference or disturbance to the site. The grantee party submits the fact that the majority of the proposed licence is not subject to the native title claim should be given significant weight.
I broadly accept the grantee party’s submission that weight should be given to the fact that a significant portion of the proposed licence is not subject to the Nyikina and Mangala native title claim, and therefore the procedural rights afforded to registered claim groups do not arise in relation to the areas not covered by the claim. I also accept Ms Mulligan's assertions that there are burial sites in the ant pits within the proposed licence area of importance to the Nyikina and Mangala claim group, and her genuine concern that they not be disturbed. Ms Mulligan's statement, however, does not identify the location of these burial sites with any specificity, referring to their location ‘to the east and centre of the area the company wants to explore’. Using these broad references, it may be inferred, and the grantee party does infer, that these sites do not fall within the boundary of the Nyikina and Mangala native title claim (as the claim/licence overlap is in the west of the proposed licence area). However, setting aside whether the burial sites fall within the claim area, Ms Mulligan’s evidence about these sites lacks the precision and detail required to enable the Tribunal to be satisfied that these are areas of particular significance in accordance with the native title party’s traditions.
The Government party submits the evidence adduced in Ms Mulligan’s statement is too general in nature to satisfy the requirement at s 237(b) that the sites be of particular significance. The Government party submits that an area or site of particular significance must mean an area which stands out in some way from the general background of other sites and the country as a whole, and further that ‘not every area or site identified as significant by an Aboriginal person will qualify, otherwise the term would be meaningless’. I agree with the Government party’s submission to the extent that the evidence of the native title party in this matter does not provide sufficient information for me to determine that the sites referred to in Ms Mulligan’s statement are sites of particular significance.
The Government party contentions state that the predictive assessment required in considering whether s 237(b) applies involves an assessment of whether the regulatory regime is sufficient to make interference to a site unlikely. The Government party cites the finding of Nicholson J in Little 2 (at [77]), that interference with areas or sites of particular significance is unlikely given the protective effect of the Aboriginal Heritage Act. Further, the Government party indicates the Tribunal may have regard to a grantee party’s attitude to entering into an RSHA, and other evidence of the grantee party directed toward Aboriginal heritage. I agree with these contentions from the Government party.
The grantee party states it will comply with all legislative requirements including, but not limited to, the Aboriginal Heritage Act and the Mining Act and all its subsidiary legislation, and that it will comply with all conditions imposed on the proposed licence. The grantee party cites the authority of Silver which requires that a decision maker presume regularity, to take as read that the grantee party will act lawfully in exercising rights given under a licence. I accept the contentions of the grantee party, including its intentions to fully comply with the relevant legislation and the terms and conditions of the proposed licence.
Having regard to these considerations, I find the grant of the proposed licence is not likely to interfere with a site of particular significance to the native title party in accordance with its traditions.
Major disturbance to land and waters - s 237(c)
The Tribunal is required under s 237(c) to make an evaluative judgement of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party: see Little1 at [41]-[57].
The native title party contends the grant of the proposed licence will create rights whose exercise is likely to involve major disturbance. Further, the native title party contends that within the proposed licence there are sites which, in accordance with traditional law and culture, unauthorised persons may not be present. They state this places a burden on local Aboriginal people to look after strangers in their country and the grant of the proposed licence in these circumstances will cause a major disturbance. Ms Mulligan attests to the native title party asking the spirits for permission to go onto country and I accept that this is part of Nyikina and Mangala culture.
I do not accept the native title party’s contention that the grant of the proposed licence in and of itself is likely to involve major disturbance to any land or waters. In conducting an assessment of whether the act is likely to involve major disturbance, it is appropriate that I have regard to historic and current interests held in the area. As previously noted, the proposed licence area is wholly subject to the pastoral leases Blina and Liveringa, and wholly subject to a petroleum exploration permit. It has also been subject to and exploration and mining leases. The creation and operation of these interests will inevitably have impacted on and altered the environment of the area, and will have required that the native title party’s rights and interests co-exist with those rights held by the pastoral lessees and the existing exploration and previous tenement holders.
I note that the native title party’s concerns regarding unaccompanied access onto the proposed licence without permission is not a consideration for s 237(c) unless that access is likely to involve an element of physical disturbance to the land or waters. Therefore, cultural concerns about unauthorised access, in terms of the native title party’s traditional laws and customs, cannot alone form the basis of a finding of major disturbance (see Rosas; Goonack at [44]).
The grantee party asserts the proposed licence is for the purpose of exploration only and, therefore, only allows for exploration activity as defined by the Mining Act 1978 (WA) (Mining Act). The grantee party states that it intends to conduct the usual activities associated with exploration licences including ‘conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling, and surveys’. Further, the grantee party asserts that work which is ground disturbing will be broad based and ‘would only be considered minor disturbance’.
The native title party have not established there any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In addition, I accept the contentions of the Government party that the requirements imposed by the conditions of the licence and the protection of the AHA and other relevant legislation will ensure the grant of the proposed licence is unlikely to involve a major disturbance to any land or waters.
In summary, I find that the grant of the proposed licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/2217 to 142 East Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
9 December 2013
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