Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa
[2011] NNTTA 87
•19 May 2011
NATIONAL NATIVE TITLE TRIBUNAL
Banjo Wurrunmurra & Ors on behalf of Bunuba People/Western Australia/Faurex Pty Ltd & Michael Morawa, [2011] NNTTA 87 (19 May 2011)
Application No: WO10/1190
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: 19 May 2011
Catchwords: Native title – future act – proposed grant of exploration licences – 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), 151(2), 237
Mining Act 1978 (WA), s 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
Hughes v State of Western Australia, (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
Walley v Western Australia, (2002) 169 FLR 437; [2002] NNTT 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
Mr Dennis Jacobs, Department of Mines and Petroleum
REASONS FOR DETERMINATION
On 5 May 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 E04/1921 (‘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).
The proposed licence, comprising an area of 653.18 square kilometres and located 116 kilometres east of Derby, is 1.38% within the Bunuba native title claim (WC 99/19). The overlap is in two portions along, approximately, the lower south east and upper north east boundary of the proposed licence. The proposed licence area extends into the native title claim by approximately one kilometre at the upper north east, and runs along the boundary at the lower south east overlap point.
On 6 September 2010 the native title party lodged an expedited procedure objection application with the Tribunal.
On 21 September 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.
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 with supporting information from the Department of Mines and Petroleum (‘DMP’) lodged on 11 March 2011. The grantee party did not lodge any contentions or evidence.
On 5 May 2011, I was appointed by Hon C J Sumner as the Member for the purposes of the conduct of the inquiry.
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. I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act).
The unsigned affidavit of Mr Johnny Bell 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 Bell’s evidence was collected. In considering the issue of the unsworn affidavit of Mr Bell, 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, (2003) 182 FLR 362; [2003] NNTTA 69).
Legal principles
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.
In Walley v Western Australia, (2002) 169 FLR 437 (‘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).
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].
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).
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
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 site; 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.
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.
DIA documents provided by the Government party and the native title party reveal two registered sites (Winjina Gorge (12535) and Windjana Gorge Water Tank (12588)), and three other sites (Muntjaweela Bore (12970); Kileninya Rockhole (12971); and Napier Range Burial site (14464)) within the proposed licence. Of these sites, Winjina Gorge (12535) and Windjana Gorge Water Tank (12588) are within approximately 2 kilometres of the north east claim/licence site overlap, and the boundary of the Kileninya Rockhole (12971) encroaches the south east claim/licence site overlap area by approximately one kilometre.
The Tribunal map shows a number of sites within 5-10 kilometres of the proposed licence area, particularly clustered to the north of the area, and the south east.
Government party documents establish the underlying land tenure of the proposed licence is predominantly a pastoral lease (Kimberley Downs, 3114/692 at 81%). Other significant land tenure are exploration permits (PA67 at 6.6% (EP535), 3.2% (EP129R5), 58.3% (EP464)); a production licence (PA67 at 5.8% (L6R1)); stock routes (CR12475 at 0.5% and CR12474 at 4.4%); three other pastoral leases (Napier Downs, 3114/682 at 1.7%; Napier Downs, 398/833 at 6.3% and Kimberley Downs, 398/834 at 2.0%); and various road reserves at less than 0.1% each.
According to the quick appraisal, there are 17 affected tenements overlapping the proposed licence area, from between less than 0.1% up to 3.7%. There are 479 dead tenements, and a number of services affected according to the quick appraisal, including: prospect areas and pit; an open pit mine; a number of minor roads; tracks, tanks, well/bores with windmills; a non perennial lake; major water courses and spring/soak/rockhole/waterholes. There is also an aircraft landing ground and an airfield runway. The tenements affected are recorded as having been established since 1970, and the dead tenements show that mining and/or exploration has taken place on the proposed licence site since at least 1966. Further information from DMP in relation to the 1.38 percent overlap area between the proposed licence and the native title claim indicates that approximately 7 of the 479 dead tenements fall within that overlap, and that E04/1921 is the only live tenement within that overlap area.
The grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). According to documents provided by the Government party, these four conditions, and the following seven other conditions, are intended to regulate the exploration activities on the current 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 Geodetic Survey Station FA 17, JK 4, Lennard River 57, LDR 58 to 68 and mining within 15 metres thereof 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 FNA/8861, Public Airstrip Reserve 5HR 47125, Water Reserves 16563 and 16653, National Park Reserve 31107 and Water Travellers and Stock Reserve 11620 and Public Airstrip Reserve 47125.
9. 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.
10. The rights of ingress to and egress from Miscellaneous Licence 04/26, 04/48, and 04/53 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
Consent to mine on Stock Route Reserves 12474 and 12475 granted subject to;
11. No exploration activities being carried out on Stock Route Reserves 12474 and 12475 which restrict the use of the reserve.
According to Government party documents, the following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach) will be imposed:
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.
Evidence provided by the native title party
The native title party provided the following documents on 11 January 2011:
·A statement of contentions;
·The unsworn affidavit of Mr. Johnny Bell; and
·A sworn affidavit of Ms Hema Hariharan.
The Affidavit of Mr Bell is as follows:
I, Johnny Bell, CDEP employee and Pensioner of Janjuwa Community via Fitzroy Crossing in the State of Western Australia affirm THAT:
1.My name is Johnny Bell. I was born on 6 March 1940 at Ellendale Homestead (Nanangali). I do CDEP work and am also a pensioner.
2.I am a native title claimant in the Bunuba Native Title Claim (WC99/19). I am connected to the Bunuba native title claim group through both my mother and father’s side.
3.I know the country where Faurex Pty Ltd and Michael Morawa (“the grantee party”) have applied for exploration licence E04/1922 (“the exploration licence area”) because it is near where I was born.
4.I have been shown maps of the exploration licence area. The maps of the exploration licence area I was shown are attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5.The exploration licence area is on Bunuba country. Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime.
6.The exploration licence area is currently within the Bunuba native title claim and will also fall within the second Bunuba native title claim when it is lodged.
7.If you look at the pastoral stations Bunuba People come from of the Kimberley Downs Station up to and including Brooking Springs Station, Fairfield and Leopold Downs.
8.The exploration licence area is good for hunting and fishing. You can catch barramundi and sawfish in this area, as well as hill kangaroos (wirrayi), turkey, goanna (wawnyi), bush turkey and emus.
9.There are also bush tucker and bush medicines in the exploration licence area. Depending on the season there are 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 and around the exploration licence area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
11.My country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni. 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 to us.
12.There are sites of significance throughout the exploration licence area.
13.There is a stock route which runs through the exploration licence area. The stock route is important to Bunuba people and there are lots of stories connected to the stock route.
14.There are also artefact scatterings throughout the exploration licence area. There have been some clearances previously undertaken over the area with Blina which identified artefact scatterings inside the exploration licence area, but it is most likely that these sites were not registered.
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.Old people used to camp through the exploration licence area- you can see where they have camped.
19.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
20.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.
21.There are many significant places on the exploration licence area such as creeks and waterholes, as well as the Fitzroy River and animals which are important to us. There are many special places that you cannot touch. Strangers cannot go there without our permission. It is our duty to protect our special places.
22.If people enter these sites without permission they will get sick. The only way to get better is to tell a traditional owner what you did. You need to tell boss people who speak for that area and they can smoke you to get rid of the bad spirit that is making you sick. The people you have to ask need to be from the country that you have entered.
23.Strangers need to ask permission before coming on to our country as we have many special places there. They have to ask us first. They must talk to Traditional Owners, so we can understand really what they want to do.
24.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our ngarranggarni or Dreamings. If we say ‘Yes’ to drilling, we expect something to come back to us, like help making a road, and helping my community.
I accept that Mr Bell has the authority to speak for country on behalf of the native title party.
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. 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 Dann relates to another matter.
Evidence provided by the grantee party
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))
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 s 63, as well as the Aboriginal Heritage Act 1972 (WA) (‘AHA’), the standard conditions to be imposed on exploration licences, and the additional conditions/endorsements, 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.
In relation to community and social activities at the proposed licence area, Mr Bell states that he knows the country in relation to this matter as it ‘is near where I was born’ (at para 3). He states that the licence area is good for hunting and fishing, catching barramundi, sawfish, hill kangaroo, turkey, goanna, bush turkey and emus (at para 8). He also refers to collecting bush tucker and bush medicines, including bush fruits and vegetables, bush plum, bush orange, bush banana, bush grape and bush cucumber (at para 9). Mr Bell states that law is practiced in and around the exploration licence area (at para 10). He refers to a stock route which runs through the exploration licence area, and many stories connected to that route (at para 13).
Mr Bell states ‘we pass through the exploration licence area and pull up at some of the sites of significance, usually once per year’ (at para 17). He also indicates that: the ‘old people’ used to camp through the area; that you can see where they have camped (at para 18); and that ‘we pass through the sites with the youngsters to teach them about the sites and as part of law’ (at para 19).
The Tribunal’s geospatial services map shows that there are areas of significance near the 1.38% overlap between the native title party claim and the proposed licence. The Winjina Gorge (12535) and Windjana Gorge Water Tank (12588) sites are within approximately two kilometres of the north east claim/licence site overlap, and the boundary of the Kileninya Rockhole (12971) overlaps the south east claim/licence site overlap area by approximately one kilometre. This is confirmed by the DIA record of Aboriginal sites. 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.
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] & [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 Bell’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).
The size of the proposed licence is 653.18 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 1.38% 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 1.38%, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.
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 paragraphs 18-19 above of this determination.
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))
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. The Register kept under the AHA shows one recorded site within the 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 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.
In his evidence, Mr Bell outlines a number of sites of significance to the native title party. For example, he states that he knows the exploration licence area very well, as it is near where he was born (at paras 3 and 11). He indicates there are sites of significance throughout the exploration area, including a stock route (at para 13), artefact scatterings (at para 14) and the areas around Mount Percy and Mount North, which are near to the exploration licence area and which have songs (at para 15).
Mr Bell states (at para 21):
There are many significant places on the exploration area such as creeks and waterholes, as well as the Fitzroy River and animals which are important to us. There are many special places that you cannot touch.
He indicates that there are places in the exploration licence area which are so significant that people need to seek permission before going on country (at paras 16, 21, 22, and 23). For example, Mr Bell states that (at para 23):
Strangers need to ask permission before coming on to our country as we have many special places there. They have to ask us first. They must talk to Traditional Owners, so we can understand really what they want to do.
I am satisfied that the sites and areas mentioned in Mr Bell’s statement 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.
The Government party relies on ss 17 and 18 of the AHA, and s 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.
In addition, the Government party contentions at paragraph 5(e) 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) and/or the Wanjina-Wanggurr (Native Title) Aboriginal Corporation, the native title prescribed body corporate holding the determined native title of the Wanjina-Wunggurr Wilinggin recognised in Federal Court application no. WAD6015 of 1999 (WC9911[sic]), 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 and/or the Wanjina-Wanggurr (Native Title) Aboriginal Corporation, as the case may be, 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.
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 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.
The grantee party has not provided any guidance as to their attitude to the legislative framework relating to protection of any sites on the proposed licence, either in general, nor in relation to the overlap between the native title claim area, the licence area and the recorded site (Kileninya Rockhole (12971)) which is within that boundary, or other sites which may not be recorded and which may also be within that overlap boundary. Nor does the grantee party provide any guidance as to its attitude to the regulatory regime in general. I cannot determine the grantee party’s intention.
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))
As the evidence relating to s 237(b) of the Act supports a determination that the expedited procedure is not attracted in relation to E04/1921, it is not necessary to consider whether major disturbance to land and waters is likely to occur.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1921 to Faurex Pty Ltd & Michael Morawa (grantee party) is not an act attracting the expedited procedure.
Helen Shurven
Member
19 May 2011
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