Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa

[2011] NNTTA 90

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa, [2011] NNTTA 90 (26 May 2011)

Application No:                    WO10/1024

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Banjo Wurrunmurra & Ors on behalf of Bunuba People – (WC99/19) (Applicant / native title party)

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The State of Western Australia (Government party)

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Faurex Pty Ltd & Michael Morawa (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:   Helen Shurven, Member
Place:   Perth
Date:     26 May 2011

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 cause major disturbance to land or waters – expedited procedure not attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109(3), 146, 237

Mining Act 1978 (WA), ss 24, 26, 63
Aboriginal Heritage Act 1972 (WA) ss 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, [2007] NNTTA 15

Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1

Hughes v State of Western Australia and Anor, (2003) 182 FLR 362; [2003] NNTTA 69

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, [2006] NNTTA 65

Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, [2008] NNTTA 108

Parker on behalf of Martu Idja Banyjima People v State of Western Australia, [2007] FCA 1027

Parker v State of Western Australia, (2008) 167 FCR 340; (2008) 101 ALD 28; (2008) 245 ALR 436; [2008] FCAFC 23

Silver & Ors v Northern Territory & Ors [2002] 169 FLR 1; [2002] NNTTA 18

Smith v Western Australia & Anor [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia, (2002) 169 FLR 437; [2002] NNTTA 24

Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30

Hearing date:                  Determined on the papers

Representatives:

Native Title Party:          Mr Paul Garde and Ms Hema Hariharan, Kimberley Land Council

Grantee Party:                Mr Adam McKay, Hetherington Exploration and Mining Title Services Pty Ltd

Government Party:        Mr Domnhall McCloskey, State Solicitor’s Office

Ms Ros Dawson, Department of Mines and Petroleum

REASONS FOR DETERMINATION

1. On 24 March 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1922 (‘the proposed licence’) to Faurex Pty Ltd and Michael Morawa (‘the grantee party’), 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).

2. The proposed licence, comprising an area of 652.48 square kilometres and located 108 kilometres northwest of Fitzroy Crossing, is 5.11 per cent within the Bunuba native title claim (WC99/19).  The overlap runs along the eastern border of the proposed licence.  The proposed licence extends into the native title claim by, approximately, up to one kilometre in places, along a large portion of that border.   

3. On 26 July 2010 the native title party lodged an expedited procedure objection application with the Tribunal. On 30 July 2010 the native title party lodged an amended objection application with the correct grantee party named.

4. On 9 August 2010, Hon C J Sumner was appointed as the Member for the purposes of conducting the inquiry. In accordance with standard practice, the Tribunal gave directions which included parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a 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. Following a number of requests for variation of compliance dates, the final dates were set down as: 28 March 2011 for the Government party; 4 April 2011 for the native title party, and 11 April 2011 for the grantee party.

5. The native title party lodged its contentions and evidence on 11 January 2011. The Government party lodged its contentions and evidence on 24 March 2011 and supporting information from the Department of Mines and Petroleum (‘DMP’) was lodged on 11 March 2011.  The grantee party did not lodge any contentions or evidence.

6. At the listing hearing on 14 April 2011, the state and native title party agreed that the matter could proceed to a determination on the papers, that is, without holding a further hearing.  On 21 April 2011, the grantee party representative advised that the grantee party was unavailable to submit information in this matter, and to proceed to a determination on the papers. 

7. On 5 May 2011, I was appointed by Hon C J Sumner as the Member for the purposes of the conduct of the inquiry. I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act).

8. The unsigned affidavit of Mr Kevin Dann was lodged by the native title party on 11 January 2011. A sworn affidavit of Ms Hema Hariharan was also lodged on 11 January 2011, attesting to the manner in which Mr Dann’s evidence was collected. In considering the issue of the unsworn affidavit of Mr Dann, there were no objections to it being accepted, and the Tribunal is not bound by the rules of evidence (s 109(3) of the Act). I am satisfied that the unsworn affidavit is admissible, accept it on its face, and will deal with it and the other material presented by parties for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes v State of Western Australia and Anor, (2003) 182 FLR 362; [2003] NNTTA 69).

Legal principles

1. Section 237 of the Act provides:

   237Act 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.

2. In Walley v Western Australia, (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449, [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].

4. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of 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) 167 FCR 340; (2008) 101 ALD 28; (2008) 245 ALR 436; [2008] FCAFC 23).

5. 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 or create rights which might entitle the grantee party to do so (see Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little (at 588-589) where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.

Evidence in relation to the proposed act

1. Government party and Department of Mines and Petroleum (‘DMP’) documents include: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence; a report and plan from the Department of Indigenous Affairs (‘DIA’) Sites Register; a copy of the tenement application and the proposed endorsements and conditions of grant; instrument of licence and the first schedule listing land included and excluded from grant; and a tengraph Quick Appraisal.

2. A map prepared by the Tribunal’s geospatial services on 19 April 2011 shows that there are no Aboriginal communities within the proposed licence site or near the overlap between the native title claim area and the proposed licence.

3. DIA documents provided by the Government party and the native title party reveal one registered site (13813) on the proposed licence, that being a Feature site containing painting, artefacts and scatter.  The boundary for this site is within the 5.11 per cent overlap portion of the claim and the proposed licence.  The Tribunal’s geospatial map indicates a number of sites clustered within 25 kilometres of the eastern boundary of the proposed licence area, a number of which are within approximately five kilometres of that 5.11 per cent boundary - for example, sites 13854 (a Feature site), 13815 (Mount Percy Creek), 13104 (Oscar Plateau Art), 12971 (Kilerinya Rockhole), and 12972 (Kungkarinya Hill).

4. Government party documents establish the underlying land tenure of the proposed licence is predominantly a pastoral lease (Kimberley Downs, 3114/692 at 54.8 per cent).  Other significant land tenure includes: a pastoral lease (Blina, 3114/1271 at 38 per cent); and exploration permits (PA67; at 14.9 per cent (EP371R1), at 46.8 per cent (EP453), at 5.1 per cent (EP129R5), and at 32.1 per cent (EP464)).

5. According to the quick appraisal, there are 7 live tenements in the proposed licence area, overlapping from between 0.4 per cent up to 5.0 per cent.  DMP has indicated that 2 of these live tenements (E04/726 and M04/372) are within the 5.11 per cent overlap portion between the claim and the proposed licence.  There are 264 dead tenements and DMP has indicated that approximately 11 of these dead tenements are within that 5.11 per cent overlap portion (and 4 of these not having been granted).  There are a number of services noted as being affected on the tenement as a whole, including: a processing plant; two open pit mines; a number of prospects (marked as undeveloped); a tailings storage facility; a number of minor roads and tracks; an aircraft landing ground and runway; a pumping station; fence lines; wells/bores with windmills; earth dams; minor water courses and a lake (all non perennial); and a number of spring/soak/rockhole/waterholes.

6. The 2 live tenements in the 5.11 per cent overlap area are recorded as having been established since 1990 and 1999 respectively, and the dead tenements in the 5.11 per cent overlap area show that mining and/or exploration has taken place on that part of the proposed licence site since 1979.   

7. The DMP have provided a list of three proposed endorsements and nine proposed conditions of grant (as listed below).  The Government party has listed these as ‘to be imposed on the proposed tenement’ (at 6(b)).  The standard four conditions are imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). These conditions and the following five conditions act to regulate the exploration activities on the proposed licence site:

   5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.

   6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

   ·       the grant of the licence; or

   ·       registration of a transfer introducing a new licensee,

   advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

   7.   No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

   8. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water Reserve 13120 and Water Travellers & Stock Reserve 11620.

   9.   No exploration activities being carried out on Stock Route Reserve 12475 which restrict the use of the reserve.

The draft endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach) are listed as being:

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.

3.Pursuant to the Savings and Transitional Provisions of the Mining Amendment Acts 1990 and 1994 all land surrendered, forfeited (other than by plaint action) or expiring from a non-graticular exploration licence will either:

·Automatically be included into a graticular exploration licence, provided the surrender, forfeiture or expiry occurred after the grant of the graticular exploration licence; or

·Automatically be included into an application for a graticular exploration licence provided the surrender, forfeiture or expiry occurred after 14 October 1995

Evidence provided by the native title party

1. The native title party provided the following documents on 11 January 2011:

   ·A statement of contentions;

   ·The unsworn affidavit of Mr Kevin Dann; and

   ·A sworn affidavit of Ms Hema Hariharan.

2. The Affidavit of Mr Dann is as follows (note that I have taken reference to ‘Windjana George Water Tank’ to mean ‘Windjana Gorge Water Tank’, and reference to ‘Windjina George’ to mean ‘Winjina Gorge’):

   I, Kevin Dann of 4 Barnett Way, Derby, CDEP worker, solemnly and sincerely declare and affirm THAT:

   1.My name is Kevin Dann. I was born on 26 March 1960 in Derby.  I went to school and grew up in Derby.  I am a Derby Ranger.

   2.I am a native title holder for the Wanjina Wunggurr Willinggin [sic] Native Title Determination (WC99/11) and a native title claimant in the Bunuba Native Title Claim (WC99/19).

   3.My mother is Bunuba and my father is Ngarinyin.

   4.I know the country where Faurex Pty Ltd and Michael Morawa have applied for exploration licence E04/1921 (“the exploration licence area”).  The old people took me out and told me about this country.  They taught me about this country and showed me significant places.

   5.I have been shown a map of the exploration licence area.  The map of the exploration licence area I was show is attached to this affidavit and marked “A”.

   INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

   6.We visit the exploration licence area regularly to hunt and fish.

   7.Barramundi is a speciality.  You can catch barramundi after the first rain or flood as all the oxygen goes out of the water and barramundi is all around.  You can also catch sawfish in this area.

   8.We also hunt a lot in this area.  We know where to hunt.  We hunt hill kangaroos and turkey and goanna.  There are also bush turkeys that look as big as emus.  We just catch enough for the day.

   9.We also visit the exploration licence area to collect bush tucker and bush medicines.  We visit all year round and depending on the season, we get bush fruits and vegetables, bush medicine, bush plum, bush orange, bush banana, bush grape and bush cucumber.  These don’t look like the common things you see in the shop.

   10.We also practice law in the exploration licence area.

   INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

   11.There are sites of significance in the exploration licence area.

   12.The area covers the meeting point between two cultures- Windjana law business and Willigan share their practices.  There are lots of stories for this area and it is important to traditional owners.

   13.Within the exploration licence area is also the Windjana George Water Tank, which is a mythological area and important to Traditional Owners.  It also has paintings and artefacts that are significant to us.

   14.Windjina George, which is a burial site, is also within the exploration licence area.  Windjina George is also very significant to Traditional Owners.

   15.Near to the exploration licence area are Mount Percy (Goornygadi) and Mount North (Manjawillya). The areas around Mount Percy and Mount North are important to us.  We have songs for these areas.

   16.There are places in the exploration licence areas that are so significant that people need to seek permission before going on country.

   17.We pass through the exploration licence area and pull up at some of these sites of significance, usually once per year.

   18.We pass through the sites with the youngsters to teach them about the sites and as part of law.

   MAJOR DISTURBANCE TO LAND OR WATER

   19.I think it is important that the mining company takes us out and shows us where they want to go.  It is difficult for the old people to look at a map and to know exactly where they want to go.  If we go on a clearance we can tell them where they can go.

   20.Strangers need to ask permission before going on country.  If they don’t come and talk to us I am worried that they will disturb this area and that bad things may happen.

I accept that Mr Dann has the authority to speak for country on behalf of the native title party.

1. The Affidavit of Ms Hariharan is as follows:

   On 11 January 2011, I, Hema Hariharan, Legal Officer, of care of 36 Pembroke Road, Broome in the State of Western Australia, affirm:

   1.I am employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (“KLC”) and work in the KLC’s Broome office.

   2.On 18 November 2010 I attended a Bunuba native title claim group meeting in Fitzroy Crossing.  At this meeting I showed maps of the areas, regarding the grantee party’s application for exploration licence E04/1921 and E04/1922 (the “exploration licence area”) to the Bunuba native title claimants.  The maps I showed the native title claimants is annexed to this affidavit and marked “A”.

   3.I was then told the names of the people who could speak for the exploration licence area, and arrangements were made to meet the following day in Janjuwa community for the purposes of taking affidavit information.

   4.On 19 November 2010 I travelled with my colleagues Adrian Dodson-Shaw and Douglas Powers to Janjuwa Community.  We arrived at approximately 8am and met with members of the native title claim group who were nominated to give affidavit information in relation to the exploration licence area. I showed those who were nominated the annexed map of the exploration licence area. Those who were nominated to speak for the area included, but were not limited to Patrick Green, Dylan Andrews, Johnny Bell and Kevin Dann.

   5.There was significant discussion amongst the group regarding the exploration licence area.  It was also discussed who from the group would be the most appropriate deponent for the affidavit information.  Mr Johnny Bell and Mr Kevin Dann were nominated to give the affidavit information.  I then asked the deponents some questions about the exploration licence area in the presence of the rest of the group.  I took notes of what the deponents said, which I used to prepare Mr Bell’s and Mr Dann’s affidavit.

I accept Ms Hariharan’s evidence, and note that reference to an affidavit from Mr Bell relates to another matter.

Evidence provided by the grantee party

1. The grantee party representative advised, throughout the process and on 21 April 2011, that he had been unable to obtain any information from the grantee as the grantee had been travelling and was unavailable.  As such, there were no contentions or evidence from the grantee party. 

Community or social activities (s 237(a))

1. In relation to determining s 237(a), I adopt the following findings from Tarlpa:

   ·History and interpretation of s 237(a) as amended (at [57]-[64]).

   ·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.

   ·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).

   ·Must the community or social activities take place on the proposed licence area? (at [85]-[86]). 

The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including ss 24, 26 and 63, as well as ss 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’), to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.

1. In relation to community and social activities at the proposed licence area, Mr Dann states that ‘I know the country...The old people took me out and told me about this country. They taught me about this country and showed me significant places’ (at para 4).  He indicates that hunting and fishing are activities that occur in this area (including for barramundi, sawfish, hill kangaroos, turkey, goanna and bush turkey) and that only enough is caught for the day (at paras 6-8).  He states that the exploration licence area is visited to collect bush tucker and bush medicines including bush fruit and vegetables, bush plum, bush orange, bush banana, bush grape and bush cucumber (at para 9), and that law is practiced in the exploration licence area (at para 10). 

2. He indicates that the area covers the meeting point between Windjana Law business and Willigan share their cultural practices (at para 12).  He indicates there are ‘lots of stories for this area’ (at para 12).  He also refers to a burial site and songs for the areas near Mount Percy and Mount North (at paras 13-15), although I note that Mount Percy and Mount North are, respectively, approximately five and three kilometres away from the eastern boundary of the proposed licence and the 5.11 per cent overlap between the claim and the proposed licence.

3. Mr Dann does not indicate who participates in these social and community activities, only referring to ‘we’, and he indicates that the exploration licence area is passed through usually once per year (at para 17).  He also indicates that the youngsters are taught about sites and as part of law (at para 18).

4. The Tribunal’s geospatial services map and Ispatial view shows that there are areas of significance near the 5.11 per cent overlap between the native title party claim and the proposed licence.  For example, sites 13854 (a Feature site), 13815 (Mount Percy Creek), 13104 (Oscar Plateau Art), 12971 (Kilerinya Rockhole), and 12972 (Kungkarinya Hill).

5. The boundary of Feature site 13813 is within the 5.11 per cent overlap area.  I understand that DIA does not necessarily provide a record of all significant sites to the native title party in any particular area, and that there may exist areas that are not recorded which have significance in relation to the native title party’s social and community activities.

6. In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30 (‘Wilma Freddie’), affidavit evidence on behalf of a native title party indicated access to a proposed tenement was regular, but the evidence provided only general information on the present activities of the claim group. The Tribunal found (at [11] and [13]) the requisite level of interference with social and community activities was unlikely in that matter as there was little specific evidence of the activities carried out over the area. In the current matter, Mr Dann’s evidence is also broad and does not contain detail as to who performs activities on or near the area (apart from in the broadest terms of ‘we’ and ‘the youngsters’, for example); what the activities are (apart from hunting, fishing and collecting bush food and medicine, in the broadest of terms); or how often activities are conducted (apart from, again, in the broadest of terms).

7. The size of the proposed licence is 652.48 square kilometres and the area of the Bunuba claim is approximately 5772.81 square kilometres.   The size of the overlap between the claim and the proposed licence is 5.11 per cent of the proposed licence area.  Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, [2008] NNTTA 108, I find that the size of the proposed licence area in the context of the much larger native title claim, particularly as the overlap to the claim is 5.11 per cent, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.

8. Hon C J Sumner in Tarlpa (at [121]) makes the point that ‘The Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).’ Past and current use of the area has been outlined in [18]-[19] above of this determination.

9. Taking all these factors into account, I find that there is not a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

1. 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 (that is, more than ordinary) significance to the native title party in accordance with their traditions. There is the boundary of one DIA registered site within the 5.11 per cent overlap between the claim area and the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over that area or in the vicinity. The DIA 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. However, the AHA does protect all Aboriginal sites, whether on the Register or not.

2. In his evidence, Mr Dann outlines a number of sites of significance to the native title party.  For example, he refers to the Windjana Gorge Water Tank, which is a mythological area and which has paintings and artefacts that are significant (at para 13), and the Winjina Gorge, which is a burial site and significant to traditional owners (at para 14).  I note, however, that these sites are some distance away from the exploration licence area.

3. Mr Dann indicates that near to the exploration licence area are Mount Percy and Mount North, which I have noted are approximately five and three kilometres away respectively, and he indicates that these areas ‘are important to us.  We have songs for these areas’ (at para 15).  He also indicates that ‘there are places in the exploration licence areas that are so significant that people need to seek permission before going on country’ (at para 16).  He indicates that some of these sites are visited, usually once per year, and that youngsters are taught about the sites as part of law.  Mr Dann indicates that ‘I think it is important that the mining company takes us out and shows us where they want to go.  It is difficult for the old people to look at a map and to know exactly where they want to go.  If we go on a clearance we can tell them where they can go’ (at para 19). 

4. I am satisfied that those sites and areas mentioned in Mr Dann’s statement, which are near or on the proposed licence/claim area overlap, are of particular significance to the native title party in accordance with its traditions. I must now consider whether the intentions of the grantee party, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance.

5. The Government party relies on ss 17 and 18 of the AHA, and ss 24, 26 and 63 of the Mining Act to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance.

6. In addition, the Government party contentions at paragraph 5(d) indicate that the following condition will be placed on the grant of the proposed licence:

   In respect of the area covered by the licence the Licensee, if so requested in writing by the Bunuba, the applicants in Federal Court application no. WAD6133 of 1998 (WC99/19), such request being sent by pre-paid post to reach the Licensee’s address, c/- Hetherington Exploration & Mining Title Services Pty Ltd, PO Box 8249, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Bunuba the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups [e.g. the Goldfields/South West/Central Desert/Pilbara/Yamatji Land and Sea Council RSHA] offered by Kimberley Land Council.

This suggests that should the KLC wish to adopt the terms of a RSHA, such would be executed in favour of the KLC.

1. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to a RSHA (Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 at 386-388 [30]-[34] (‘Champion’). The RSHA contains processes for the protection of sites, including the conduct of a heritage survey. In this matter, the grantee party has offered no evidence or guidance as to their attitude towards a RSHA.

2. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38], and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, [2007] NNTTA 15 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.

3. The intentions of the grantee party, including its attitude to the State’s regulatory regime (for example, the AHA), is a relevant factor in the predictive assessment process (see Silver & Ors v Northern Territory & Ors [2002] 196 FLR 1; [2002] NNTTA 18, at [25]-[32]; Smith v Western Australia & Anor [2001] FCA 19; (2001) 108 FCR 442, at [35]; and Walley, at [9]).

4. The grantee party has not provided any guidance as to their intentions toward the legislative framework relating to the protection of any sites on the proposed licence, either in general, nor in relation to the 5.11 per cent overlap between the native title claim area, the licence area and/or the boundary of the recorded Feature site (13813) which is within that overlap area, or other sites which may not be recorded and which may also be within that overlap area. Nor does the grantee party provide any guidance as to its attitude to the regulatory regime in general, including the AHA. I cannot determine the intentions of the grantee party in this matter.

5. Taking all of these factors into account, I find that there is likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.

Major disturbance to land and waters (s 237(c))

1. As the evidence relating to s 237(b) of the Act supports a determination that the expedited procedure is not attracted in relation to E04/1922, it is not necessary to consider whether major disturbance to land and waters is likely to occur.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E04/1922 to Faurex Pty Ltd & Michael Morawa (grantee party) is not an act attracting the expedited procedure.

Helen Shurven
Member

26 May 2011