Aubrey Tigan and Others on behalf of the Mayala Native Title Claimants/Western Australia/William Robert Richmond/Drill Gold Pty Ltd
[2009] NNTTA 167
•11 December 2009
NATIONAL NATIVE TITLE TRIBUNAL
Aubrey Tigan and Others on behalf of the Mayala Native Title Claimants/Western Australia/William Robert Richmond/Drill Gold Pty Ltd, [2009] NNTTA 167 (11 December 2009)
Application No: WO09/154
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Aubrey Tigan and Others on behalf of the Mayala Native Title Claimants (WC98/39) (native title party)
- and -
The State of Western Australia (Government party)
- and -
William Robert Richmond (grantee party)
- and -
Drill Gold Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 11 December 2009
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – mean high water mark – exploration licence over Aboriginal Reserve land – access agreement required with native title party – conditions imposed on the grant of the exploration licence – s 237 interference or disturbance to land unlikely and expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 26(2), 29, 31, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Aboriginal Affairs Planning Authority Act1972 (WA)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1979] FCA 332; (1997) 74 FCR 391
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Member O’Dea
Kevin Peter Walley & Ors Ngoonooru Wadjari People/Western Australia/Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), Member Sosso
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, NNTTA 18 (1 February 2002), Member Sosso
Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same, NNTT WO01/461, [2002] NNTTA 157 (2 August 2002), Hon C J Sumner
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 (31 January 2007), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340)
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso
Rosas v Northern Territory (2002) 169 FLR 330 at 359
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, [2007] NNTTA 82 (17 September 2007), Hon C J Sumner
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia vSmith (2000) 163 FLR 32
Representatives of the Ms Hema Hariharan, Legal Officer, Kimberley Land Council
native title party: Ms Ania Maszkowski, Kimberley Land Council
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr William Richmond
REASONS FOR DETERMINATION
On the 19 November 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the exploration licence E04/1733 (‘the proposed licence’) to William Robert Richmond and Drill Gold Pty Ltd (‘the grantee’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 46.28 square kilometres located 90 kilometres north east of Derby in the Shire of Derby-West Kimberley. It is 18.4 per cent overlapped by the registered claim of the Mayala (WC98/39 – registered from 1 July 1998). The remainder of the proposed licence is overlapped at 81.6 per cent by the registered claim of the Dambimangari (‘Dambimangari claim’) (WC99/7 – registered from 31 May 1999).
On 19 March 2009, Aubrey Tigan, Lucy Coomerang, Turkoi Mowarljarli & Adrian Isaacs, on behalf of the Mayala Native Title Claimants (WC98/39) (‘the native title party’), made an expedited procedure objection application to the Tribunal. An amended application was made on 2 April 2009 to insert Aubrey Tigan and Others on behalf of the Mayala Native Title Claimants (WC98/39) as the applicant to the objection application. The original application gave several objectors who were not registered as applicants on the native title determination application. An expedited procedure objection application was not lodged by the Dambimangari claim (WC98/39).
On 7 April 2009, Deputy President Sumner (also referred to throughout this determination as “Hon C J Sumner”) was appointed as the Member for the purposes of the conduct of the inquiry and on the same day the expedited procedure objection application was accepted by the Tribunal.
In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At an adjourned Status Conference held by the Tribunal on 1 July 2009, in the absence of a resolution by agreement, the Government party requested the application proceed to inquiry. All parties agreed to a request by the native title party to extend direction compliance dates to gather affidavit evidence and for the representative of the native title party to seek instructions from its client on a proposed offer made by the grantee party. The request was approved by Deputy President Sumner on 7 July 2009 and the Listing Hearing set down for 20 August 2009. A further three requests to amend directions compliance dates were approved by Deputy President Sumner, and, at an adjourned Listing Hearing held by the Tribunal on 5 November 2009, all parties advised the Tribunal that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. (Following my appointment as the presiding Member, consistent with para [8] below, I am satisfied that the objection can be adequately determined on the papers (s 151(2) Act)).
The Government party lodged its evidence and contentions on 17 June 2009 and 6 July 2009. The native title party lodged its contentions on 24 October 2009 and evidence, partially complete, on the same day. The affidavit evidence of Mr Donny Woolagoodja for the native title party was not affirmed and lodged as a statement of evidence. At the adjourned Listing Hearing held on 5 November 2009, the native title party was unable to advise the Tribunal when the affidavit evidence was to be affirmed, providing the reason that the wet season had commenced in the Kimberley region. It was stated that the grantee party would rely on the evidence and contentions of the Government party.
On 6 November 2009, I was appointed by Deputy President Sumner as the Member for the purposes of the conduct of the inquiry.
On 1 December 2009, I convened a Directions Hearing at which all the parties were represented. Mr Clyde Lannan officially explained material from the Government party, provided to the Tribunal on 24 November 2009, and circulated to all parties, as a result of identifying that the proposed licence was not entirely overlapped by Crown Reserve 30674. The material includes 4 Standard Conditions to be imposed by the Government party on the grant of the proposed licence and takes into account Vacant Crown Land which overlaps the native title party’s claim. Mr William Richmond, for the grantee party, and Ms Hema Hariharan, for the Kimberley Land Council, gave statements of approval for the late material to be included in the submissions of the Government party. Parties were at liberty to make further submissions on this material, and were to formally notify the Tribunal by the close of business on 1 December 2009. No additional submissions were made.
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles at [7]–[23] and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities at [24]–[35]. I adopt those findings for the purposes of this inquiry, while noting that Standard Condition (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources (now the Department of Mines and Petroleum (‘DMP’)). Further, s 63 of the Mining Act (s 63(aa)) has been amended to require the approval of a program of work by the Environmental Officer of the Department of Industry and Resources (now DMP) for the use of ground disturbing equipment.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31] –[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
Contentions of the Government party
In general, the Government party contends that the proposed licence will not give rise to any of the issues raised by s 237 (a), (b) and (c) of the Act.
The Government party contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of community or social activities of the objectors in relation to the proposed licence for the following reasons:
·The Cone Bay Aboriginal Community is located within the boundaries of the proposed licence.
·Reserves for the Use and Benefit of Aborigines, includes:
(b) ‘Reserve 30674 is land to which Part III of the Aboriginal Affairs Planning Authority Act1972 applies. Section 24(7) of the Mining Act provides that mining (which term includes exploration) on Aboriginal reserve land needs the written consent of the Minister for State Development, who must consult with and obtain a recommendation from the Minister for Indigenous Affairs, before giving any such consent;
(c) Aboriginal reserve land is subject to the Aboriginal Affairs Planning Authority Act, which prevents the grantee party from gaining access to the land without authorisation from the Minister for Indigenous Affairs: section 31 of the Aboriginal Affairs Planning Authority Act, and regulation 8 of the Aboriginal Affairs Planning Authority Act Regulations;
(d) in practice the Minister for Indigenous Affairs requires that the grantee party negotiate an agreement with the relevant Aboriginal community in respect of access to the land for exploration activities;
(e) the agreement referred to in (d) forms the basis for the formulation of the conditions to be attached to the authorisation of the Minister for Indigenous Affairs, to the grantee party, for access to the land for exploration activities;
(f) in practice, the authorisation of the Minister for Indigenous Affairs includes conditions relating to the protection of, and prevention of interference with, the community life of the relevant Aboriginal community;
(g) in practice, the grant of a tenement of the type proposed may involve the imposition of conditions, which are directed to the protection of any Aboriginal community on the land;’
The Government party contends that the grant of the proposed licence is not likely to interfere with areas or sites of particular significance to the objectors according to their traditions due to the protective provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘the AHA’). The Government party refers to provision s 63 of the Mining Act 1978 (WA) and the conditions which are to be imposed on the grant of the proposed licence to assert that the proposed licence is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to the land.
Contentions of the native title party
The native title party contends, in para 3 of its submission, that the grant of the proposed licence will be a future act attracting the expedited procedure if, and only if, all of the following conditions in subsections (a), (b) and (c) of s 237 of the Act are met, namely, the grant of the proposed licence is not likely to interfere directly with the carrying on of community or social activities; not likely to interfere directly with areas or sites of significance; and 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 and waters concerned.
Evidence of the Government party
The Government party’s documentary evidence establishes the underlying tenure of the proposed licence to be as follows:
· Crown Reserve 30674 – Use and Benefit of Aborigines vested in the Aboriginal Lands Trust (44.9 per cent overlap);
· Proposed Marine Park PMP/2 (49.6 per cent overlap);
· Vacant Crown Land (0.67 per cent overlap);
· Yampi Defence Area (2.0 per cent overlap);
· Proposed Nature Reserve PNR/230 (0.5 per cent overlap);
· Private Land CG 15 (1.9 per cent overlap).
· Site ID 14202 – Cone Bay 1 (midden/scatter);
· Site ID 14884 – Cone Bay (artefacts/scatter and camp);
· Site ID 14885 – Yamoy (camp).
The map provided by the Tribunal’s geospatial unit, which was circulated to all parties on 16 November 2009 and uncontested, shows the three registered heritage sites are within or overlapping the proposed licence area. Site ID 14202 abuts the eastern boundary of the proposed licence and is located over the Dambimangari claim (WC99/7); site ID 14884 is located in the south west portion of the proposed licence and overlaps the native title party’s claim and the Dambimangari claim (WC99/7), and is on the DIA permanent register; and site ID 14885 is located within the proposed licence over water and islands in the Cone Bay within the native title party’s claim.
The map provided by the Government party shows that the Cone Bay Aboriginal Community is located at the eastern side of the proposed licence, within the Dambimangari claim and Crown Reserve 30674, as referred to in para [17] above.
The evidence of the Government party does not establish extensive exploration activity over the proposed licence, with one ‘dead’ tenement application, E04/1135, having been refused on 24 January 2000.
The grant of E04/1733 will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). An additional condition, as evidenced by the Government party (see para [9] above), will be as follows:
5.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aborigines Reserve 30674 and the Foreshore, Seabed and Navigable waters.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
·The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations there under.
·The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulation 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
On 24 November 2009, the Government party confirmed, via email, that the portion of the proposed licence which overlaps the native title party’s claim and comprises Crown Reserve 30674 is 5.38 per cent. The area of overlap which is not within Crown Reserve 30674 and comprises Vacant Crown Land is 11.43 per cent.
Evidence of the native title party
‘I Donny Woolagoodja, Artist, of the town of Derby in the State of Western Australia, affirm:
1. My name is Donny Woolagoodja. I am one of the senior people for the Mayala Combined Native Title Determination Application (WAD6255/98). I am also a named applicant of the Dambimangari Native Title claim (WAD6161/1998).
2. I know the area where William Robert Richmond & Drill Gold Pty Ltd, (“the grantee party”), have applied for Exploration Licence Number E04/1733, (“the exploration licence area”), very well, because I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
3. The exploration licence area falls within Mayala and Dambimangari country. Mayala country is the country where Mayala language was put in the Dreamtime. That is my country that I am from because of my mother and father. My mother and father are from that country, that is my country too.
4. I have travelled all over the country in the Mayala and Dambimangari claim areas. I first started travelling around this country with my father, Sam Woolagoodja, in the 1970’s. I have travelled all over the country in the Mayala claim area. I was in that country when I was a little kid and my father first started to take me around to teach me about country in the 1970s. My father taught me about the country when I was travelling around with him. I feel at home on country and I know country because I got that knowledge from my father.
5. In the 1980s, I helped set up a community at Yalun, which is also called Cone Bay. In the 1980s Alfie Umbbagai and I also used the Gulingi Nunga Aboriginal Corporation, which was our corporation in the 1980s, to get out to country. In about 1998 I bought a boat and after that I was able to travel around the country in the Mayala claim including the exploration license area, whenever I wanted to.
6. I first started learning about country from my father when I was seventeen. I am about 60 now. He taught me about all the country in the Mayala area, that Cone Bay area. Ever since then I have travelled through that country all the time. I can’t say how many times I have been out there because I go all the time. I take my family with me a lot. Alfred Umbagai comes out with me a lot. Alfie first started travelling through and learning from my father at the same time as me.
7. Because I have owned my own boats at different times since the 1980s, I have been able to get out to country whenever I want. I take trips to the Cone Bay area all the time, that’s my country. I feel good whenever I go out to my country.
8. There is good hunting and fishing in the exploration licence area. We hunt fish and turtles and other animals from the sea right in that Cone Bay area which is inside the exploration licence area. We hunt sea turtle, it’s a good place to go and get turtles. This is good food for my family. This is the food that my father taught me to hunt.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10. My country, and the Law we follow comes from the Dreamtime. I know the exploration licence area very well. There are many places in my country, including inside the exploration licence area, which are very important and have great significance in the traditional religion of my community.
11. The old people used to go there. They used to tell us stories. Today, we still visit that place. We fish and hunt there.
12. There are sites sacred places and important to our people in that Cone Bay area. There are places where the old people used to go. There are areas where there are artefacts and old camp sites from long time ago. This area is special to us. We don’t want people getting to close to that area. There are places from before white people came here to my country, camp sites with Midden and shells left over from old people, artefacts that were left in that place by old people. Those places are for us and our children, we don’t want them getting damaged, or people going there to them places.
13. There are sacred and important places in the Cone Bay and exploration licence area that have paintings telling stories from our Dreamtime. There are places with Wanjina painted. That Wanjina is very important to our stories and our culture, we don’t want people going there and disturbing those places. We have problems with tourists, white people just coming in boats and going places that they shouldn’t go and no-one asked to go there. We want to keep the places, we don’t want to lose them or for them to be destroyed.
14. There are a lot of rock paintings and cave paintings in and around the exploration license area. We remember the camps of our old people up and around the Cone Bay area and down into the exploration license area. Old people told us to look after that Country. We don’t want to upset them.
15. We are looking after all the important places in our country. We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it. A part of the exploration licence area is Mayala country and the other part is Dambimangari country, the country of my parents. We belong to this country, we want to look after this country, that’s what our old people wanted. We don’t want people to come without talking to us about what they are doing, so we can say ‘yes’ or ‘no’ to what they want to do with our country.
16. There are very important places in that Cone Bay area. They are not marked for white people but we all know where they are. Mining people must not damage these places.
17. Cone Bay is very important place for us, the whole area is a special place including in and around the exploration license area. There are sites from old people and old campsites and their paintings. There are cave paintings all throughout the Cone Bay. White people have to ask somebody to go up there. It is generally a place where people should not go.
18. The Dambimangari Consent determination of their Native Title Claim is set to be held in Conebay. It is very important to the Mayala and Dambimangari People.
MAJOR DISTURBANCE TO LAND OR WATER
19. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.
20. White people must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old people and from the early days.
21. If stranger-blackfellas come to our country, they don’t muck around, they know blackfella law, they understand. That’s why we are frightened about white people coming to our country because they just jump in.
22. If white people damage a site or artefact we feel upset. We feel very sad, like someone close to us has died. It’s like the same thing for country. We feel sad for our country being damaged.
23. White people cannot help themselves to our country. They have got to ask us first. If we say ‘No’, they must leave, but if we say, ‘Yes’, they can stay and talk with us. If they make money off our country, they should give my community a little bit because they are taking something from our country, our land.
24. If we make an agreement with mining people, we will tell them where they can go on our country and where they can’t. But they can’t do anything to our important sites and paintings from the old people or Dreamings. If we say ‘Yes’ to drilling, we expect something to come back to us, like helping my community. This is because we are looking after this country.’
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to them are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450 [23]). Direct interference involves an evaluative judgment 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 451 [26]). The assessment is also contextual, taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451 [27]). The relevance and weight to be given to such evidence will depend on the circumstances of the case (Western Australia vSmith (2000) 163 FLR 32, NNTT WO99/511, Hon E M Franklyn QC at 51 [35]; Kevin Peter Walley & Ors Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), Member Sosso (now Deputy President Sosso), at [14]-[19]; Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, NNTTA 18 (1 February 2002) Member Sosso (now Deputy President Sosso), at [25]-[32].
Mr Woolagoodja for the native title party uses the pronouns ‘I’ and ‘we’ interchangeably throughout his statement of evidence. ‘I’ is used specifically, in relation to paragraphs 3 to 7 of his affidavit, which are relevant to community or social activities and to establish a more personal account of his activities and those of his family. These include owning a boat at different times since the 1980s which enabled Mr Woolagoodja to ‘get out on country whenever I want’ (AF7). In paragraph 6, Mr Woolagoodja states his visits to country are regular because he ‘travels through country all the time’. He takes his family with him a lot and refers to also going out on country with Alfred Umbagai (AF6). The use of ‘we’ is referred to in paragraphs 8 to 9 of the affidavit in relation to s 237 (b) and states that there is ‘good hunting and fishing in the exploration licence area. We hunt and fish and turtles and other animals from the sea right in that Cone Bay area....’. ‘We collect different types of bush tucker and bush medicines on my country...’ (AF8-9). I take the use of ‘we’ to refer to his family group, and that other members of the native title party may undertake the same activities within the proposed licence area.
In making a contextual assessment, the issue now turns to other factors. The evidence establishes that this is not a case where there has been extensive prior mining or exploration activity or pastoral activity. In terms of current exploration activity, the Tribunal has often found that the relatively limited and temporary nature of exploration activity is not likely directly to interfere with community and social activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora, at [31], citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (now Deputy President Sosso) at [43]-[44]).
The Tribunal also has regard to the evidence and intention of the grantee party of what it intends to do in relation to the exploration activities it will carry out within the proposed licence area. In Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea (‘Butcher Cherel’) at [32] and [59]-[60], the Tribunal accepted that, in the face of detailed evidence and submissions relating to the intention of the parties, both in terms of the nature of the exploration activity it intended to conduct and the manner in which it intended to interact with the native title party, the likelihood of interference might be markedly reduced.
In the absence of evidence of the grantee party’s intentions (other than as noted in para [37]) below, the question of direct interference must be assessed by reference to the relevant aspects of the Government party’s regulatory regime under the Mining Act 1978 (WA), including provision s 63 and the conditions to be imposed on exploration licences (Walley) at [9].
In this case, the grantee party relies on the submissions of the Government party; however, on 19 November 2009, the grantee party provided the Tribunal with correspondence and a map in response to the Tribunal map circulated to all parties on 16 November 2009. The response, circulated to all parties, shows a specific location marked by the grantee party for a proposed mining lease area within the proposed licence, and marked as being in both the native title party’s claim and the Dambimangari claim. The correspondence also referred to a combined offer of agreement to the native title party and the Dambimangari claim, and some general observations. As this material is uncontested, it is taken into account in this determination and in making the predictive and contextual assessment as to the likelihood of interference with the community or social activities, I must also assume that the grantee party will fully utilise its statutory prerogatives in circumstances where the tenement is granted.
The evidence adduced in this matter by the native title party does not provide a basis for suggesting that there are significant community or social activities carried out by the native title party within the proposed licence. The evidence of the native title party in terms of s 237 (a) is significantly less extensive than that produced in Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same, NNTT WO01/461, [2002] NNTTA 157 (2 August 2002), Hon C J Sumner (see discussion at [21]-[22]). The location of the Cone Bay Aboriginal Community is in the Dambimangari claim and more intensive activity could be assumed; however, the evidence does not establish more than a general reference to fishing and hunting in the Cone Bay area by the native title party. A significant portion of this area is overlapped by Crown Reserve 30674. Whilst the activities of a physical nature, where it is evident, relates to fishing, on the evidence, it is subject to access to boats by members of the native title party to enable regular activity. Additionally, more precise locations of these activities are not given and this makes it difficult to make a predictive assessment, in particular, over the area of the islands in the native title party’s claim. Also, only a general reference is made to the collection of bush tucker and medicines. In these circumstances, I find that the grant of the proposed licence is not likely to interfere with the community or social activities of the native title party within the requirements of the Act.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208, that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions para 14), as the Tribunal has said repeatedly in the past, I adopt the findings in 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 (31 January 2007), Hon C J Sumner at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement, based on the previous words ‘community life’ in s 237(a), is no longer applicable.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. Recorded on the Register kept under the AHA are 3 open access sites within the proposed licence area, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The evidence provided by the native title party in the statement by Mr Woolagoodja in paragraphs 10 – 17 is uncontested, and I am satisfied that there are likely to be sites of significance to the native title party in accordance with their traditional laws and customs within the proposed licence. However, the statement of evidence by Mr Woolagoodja does not refer to any particular area or site or provide any basis for making a predictive assessment that any site is of particular significance to the native title party, other than by general reference to important places. Conversely, the Tribunal map, does confirm that the DIA registered site ID No. 14,885 is located within the proposed licence. The Tribunal map also depicts other DIA sites which are not documented in the Government party’s documentary material and are located within approximately 5 to 15 kilometres of the area of the proposed licence. These sites, while noted, may be located sufficiently beyond the proposed licence to ensure that interference with them is unlikely.
The native title party is required to provide sufficient detail and specificity in order to allow the Tribunal to make the predictive assessment in accordance with s 237(b) of the Act. In reference to para [18] above, relating to DIA site 14885, sufficient detail in the evidence of the native title party is required to identify whether the site is over land or water; location and the nature of the site; and its significance. The description in the DIA and Government documentation refers to the site as a ‘camp’. It is assumed that the site is located over the area of islands depicted in the Tribunal map and over Vacant Crown Land. In contrast, and in relation to a previous matter before the Tribunal in Dambimangari at [30], which also included the evidence of Mr Woolagoodja, sufficient details and specificity was provided for the Tribunal, in making its predictive assessment, to be satisfied that there were sites and areas of particular significance to the native title party in accordance with its traditions.
As the evidence in this matter is not specific and less extensive, it leads to a conclusion that there is insufficient evidence to establish that there are sites of particular significance within the area of the proposed licence, and in terms of the portion of the proposed licence which comprises Vacant Crown Land. That being the case, it is not necessary for me to proceed to consider the question of presumption of regularity and I find that, in accordance with s 237(b), it is not likely that any sites of particular significance will be interfered with.
As already stated, the grantee party has not provided definitive evidence of its exploration intentions and so the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full. I accept that the grantee will act lawfully and in accordance with the AHA.
Major disturbance to land and waters (s 237(c))
In relation to the third limb of s 237 of the Act, an evaluative judgment is required on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it). This is 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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1979] FCA 332; (1997) 74 FCR 391).
The statement of evidence of Mr Woolagoodja in AF22 expresses concern that ‘If white people damage a site or artefact we feel very upset.’ Mr Woolagoodja states that ‘White people must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old people and from the early days’ (FA20). I accept that the presence of strangers on the subject area may be upsetting to the native title party. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural concerns about unauthorised access, in terms of the native title party’s traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to, will be the exploration activities to be conducted by the grantee party. There is no evidence that there will not be compliance by the grantee party with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (Standard Conditions 1 – 4). In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party, is not sufficient to establish that major disturbance is likely to occur. I find that it is unlikely that there will be major disturbance to land or waters in this case, as contemplated by s 237(c).
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1733 to William Robert Richmond and Drill Gold Pty Ltd is an act attracting the expedited procedure.
Neville MacPherson
Member
11 December 2009
1
15
0