Billy Atkins & Ors on behalf of Gingirana/Western Australia/Montezuma Mining Co. Ltd
[2011] NNTTA 57
•28 March 2011
NATIONAL NATIVE TITLE TRIBUNAL
Billy Atkins & Ors on behalf of Gingirana/Western Australia/Montezuma Mining Co. Ltd, [2011] NNTTA 57 (28 March 2011)
Application No: WO10/376
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Billy Atkins, Miriam Atkins, Slim Williams
Anthony Charles, Kate George and
Stan Hill on behalf of Gingirana (WC06/2)
- and -
Montezuma Mining Co. Ltd
- and -
The State of Western Australia
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson
Place: Melbourne
Date: 28 March 2011
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 – expedited procedure applies.
Legislation: Native Title Act 1993 (Cth), ss 29, 32, 77, 148, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act1978 (WA), ss 20(5), 24, 26, 63
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)
Champion v Western Australia (2005) 190 FLR 362
Cheedy/Western Australia/Cazaly Iron Pty Ltd, WO06/529, [2008] NNTTA 39 (4 April 2008)
Dann v Western Australia (1997) 74 FCR 391)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia (2008) 167 FCR 340
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Little v Western Australia [2001] FCA 1706
Silver v Northern Territory of Australia (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Representatives:
Native title party: Ms Anna Liscia, Integra Legal
Grantee party: Mr Michael Giles, Montezuma Mining Co. Ltd
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Mr Domhnall McCloskey, State Solicitor’s Office
REASONS FOR DETERMINATION
On 18 November, 2009, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2467 (‘the proposed tenement’) to Montezuma Mining Co. Ltd (‘the grantee party’), and included in the notice a statement that it considered the grant attracted the expedited procedure.
The notice described the proposed tenement as being located 118 kilometres south of Newman, in the Shire of Meekatharra, and comprising an area of 615.81 square kilometres.
The proposed tenement is overlapped by two native title claims: the Gingirana People (WC06/2, registered from 13 April, 2006) and the Nyiyaparli People (WC05/6, registered from 29 November, 2005), covering approximately 34.08 per cent and 65.92 per cent of the proposed tenement, respectively.
On 9 March, 2010, and on 18 March, 2010, expedited procedure objection applications were lodged with the Tribunal, pursuant to s 32(3) of the Act, by Billy Atkins and others, on behalf of the Gingirana (WC06/2) (‘native title party’), and by David Stock and others, on behalf of the Nyiyaparli (WC97/95) (‘Nyiyaparli native title party’), respectively.
Deputy President Sumner accepted the expedited procedure objection applications of the native title party and the Nyiyaparli native title party, pursuant to s 77 of the Act, on 29 March, 2010, and on 12 April, 2010, respectively. On the same dates, in accordance with standard practice in expedited procedure objection matters, Deputy President Sumner made directions for the parties to provide contentions and evidence. On 2 August, 2010, Deputy President Sumner dismissed the objection application of the Nyiyaparli native title party.
At the first Status Conference on 9 June, 2010, the grantee party representative confirmed that the grantee party would rely on the Regional Standard Heritage Agreement (‘RSHA’) and requested the matter proceed to an inquiry before the Tribunal.
The Government party and native title party provided the Tribunal with written contentions on 9 April, 2010 and on 12 July, 2010, respectively. The grantee party advised at the Listing Hearing on 29 July, 2010, that it wishes to rely on the submissions of the Government party. At the Listing Hearing, the Government party and grantee party advised their wish that the determination be made on the papers. The native title party submitted a letter dated 26 July, 2010, advising that it is agreeable to the determination being made on the papers.
On 31 August, 2010, I was appointed as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
I consider it appropriate to conduct the inquiry and make a determination on the papers, without a hearing.
Legal principles
The key statutory provision in any expedited procedure application is s 237 of the Act which 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) 169 FLR 437 (“Walley”), Deputy President Sumner considered, in the context of Western Australia, the applicable legal principles governing expedited procedure objection inquiries (at pages 439-449). I adopt those findings for the purpose of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended, and the Standard Conditions to be imposed on exploration licences have been strengthened. Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than 6 months after excavation, unless otherwise approved by the Environmental Officer of the Department of Mines and Petroleum. Standard Condition 4 now has to be read with s 63(aa) of the Mining Act, which deems that an exploration licence will be granted subject to the tenement holder not using:
“… ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless –
(i)the holder has lodged in the prescribed manner a programme of work in respect of that use; and
(ii)the program of work has been approved in writing by the Minister or the prescribed official.”
The Work Program must contain information from the Register of Aboriginal Sites kept under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) by the Department of Indigenous Affairs (‘DIA’); advise whether the proposal intersects the boundary of any registered site; involve consultation with the DIA; and obtain advice from the latter Department that the proposed activities are acceptable – Cheedy/Western Australia/Cazaly Iron Pty Ltd [2008] NNTTA 39 at para [22].
In Western Australia there is an integrated regulatory regime which aims to minimise the likelihood of exploration activities unnecessarily impacting on the livelihood and lifestyle of third parties, including indigenous persons claiming native title rights and interests. Whilst this regime reduces the likelihood of interference or disturbance as contemplated by s 237 of the Act, it does not absolve the Tribunal from undertaking the task of making a predictive risk assessment. The regulatory regime is an important factor in assessing risk, but it does not automatically negate the risk or chance of interference or disturbance. In any inquiry, the Tribunal is required to carefully weigh up all the material produced prior to reaching a conclusion on the likelihood of interference or disturbance.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licenses in Western Australia (see Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006) (‘Maitland Parker’) at para [21] - conditions 1-4). Additional conditions require that the pastoral lessee be notified of the grant of the licence and of certain exploration activities (refer to conditions 5-6).
In addition, the grant of the proposed tenement will be subject to the following Conditions 5-9:
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 Licensee: or
· Registration of 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. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Rabbit Proof Fence Reserve 12297.
8. Mining on a strip of land 30 metres wide with the Rabbit Proof Fence as the centre-line being restricted to below a depth of 15 metres from the natural surface.
9. No interference with Geodetic Survey Station CLR 7 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface
The Government party will also impose the following condition, giving the native title party (and/or the Nyiyaparli native title party) the option to agree to a RSHA with the grantee party within a specified time after the grant of the proposed tenement:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the Gingirana, the applicants in Federal Court application no. WAD 6002 of 2003 (WC06/2) and/or the Nyiyaparli, the applicants in WAD 6280 of 1998 (WC05/6), such request being sent by pre-paid post to reach the Licensee’s address, PO Box 8535, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of such request execute in favour of the Gingirana and/or the Nyiyaparli, as the case may be, the Regional Standard Heritage Agreement endorsed by peak industry groups and the Ngaanyatjarra Land Council and/or Pilbara Native Title Service respectively.”
The following endorsements (which differ from Standard Conditions, in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained
The licensee’s attention is drawn to the existence of a licence for capturing feral camels granted pursuant to section 91 of the Land Administration Act 1997
Contentions of the Government Party
Material filed by the Government party establishes the underlying land tenure of the proposed tenement, as follows:-
· Vacant Crown Land (a total of approximately 59.6 per cent overlap)
· Kumarina Pastoral Lease 3114/1126 (40.2 per cent overlap)
· Crown Reserve 12297 – Rabbit Proof Fence No 1 (less than 0.1 per cent overlap)
· Road Reserves (less than 0.1 per cent overlap)
The proposed tenement is also overlapped by two File Notation Areas under the authority of the Department of Planning and Infrastructure (renewal of licence for capturing of feral camels and horses) and the Department of Environment and Conservation (proposed nature reserve), with an overlap of 58.9 per cent and 51 per cent, respectively.
The Government party drew the attention of the Tribunal to the operation of s 20(5) of the Mining Act which provides that, in relation to pastoral leasehold land included within the proposed tenement, unless the occupier gives written consent, or the Mining Warden otherwise directs, the holder of a mining tenement is not permitted to prospect, fossick on, explore, mine or otherwise interfere with any Crown land that is:
(a) under crop, or which is situated within 100 metres thereof;
(b) used as, or situated within, 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(c) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
(d) the site of, or situated within 100 metres of, any cemetery or burial ground; and
(e) land the subject of a pastoral lease which is the site of, or situated within 400 metres of the outer edge of , any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of the pastoral lease.
The Tribunal has previously considered, and largely discounted, the relevance of s 20(5) in the context of a predictive risk assessment in an expedited procedure objection inquiry. I refer, in this regard, to the findings of Deputy President Sumner in Walley v Western Australia (2002) 169 FLR 437, at pages 454-455, where he pointed out that the section is not designed to protect Aboriginal interests, and where a non-Aboriginal person is a pastoral lessee, consent can be given to activities otherwise prohibited without the consent of the native title parties. Consequently, for the purposes of this inquiry, although the Tribunal has considered the operation of s 20(5), it does not consider it to be of particular assistance in undertaking a predictive risk assessment.
The evidence of the Government party referred to s 24 of the Mining Act in relation to the land the subject of Crown Reserve 12297, which provides that mining on reserve land requires the written consent of the Minister for Mines and Petroleum who must consult with and obtain either the concurrence or the recommendation of the Responsible Minister or the Responsible Minister and the body or person in which the control and management of the reserve is vested before giving consent. The Minister may refuse consent, or give consent subject to such terms and conditions as provided for pursuant to s 26 of the Mining Act.
The material lodged by the Government party also indicates that the area of the proposed tenement has been released for geothermal and petroleum acreage and is covered by two proposed petroleum exploration applications (L10-4 and L10-5) and two proposed geothermal exploration applications (G08-45 and G09-227), both of which are yet to be granted. There is no current mineral exploration or mining activity in the area of the proposed tenement; however, one exploration licence, with an overlap of 13.8 per cent, was active from 2001 to 2006. A temporary reserve, which was active from 1959 to 1964, overlapped the entire proposed tenement.
The proposed tenement is intersected by one track, five fence lines and one well/bore with windmill.
The material lodged by the Government party further indicates that there are no Aboriginal communities within, or adjacent to, the proposed tenement, and no other material lodged with the Tribunal by any other party contests that assessment.
A search by the Government party generated on 17 June, 2010, of the Register of Aboriginal Sites held by DIA reveals that there are no registered Aboriginal sites partially or entirely within the proposed tenement.
The Government party submitted that the grant of the proposed tenement would be subject to the protective operation of s 63 of the Mining Act which deems that every tenement of the type proposed to be granted is subject to the holder fulfilling certain conditions, including reporting discoveries of minerals, making safe any holes, pits, trenches etc and preventing damage to property and stock.
It is appropriate to briefly explain that the Government party initiated the use of the RSHA in Western Australia in 2002 as a better means of protecting Aboriginal heritage and conducting heritage surveys, as well as reducing the then backlog of exploration and prospecting licence applications. The background to the development of RSHAs was comprehensively set out by the Tribunal in Champion v Western Australia (2005) 190 FLR 362, at paras [16] – [22], (“Champion”). I adopt, for the purposes of this inquiry, the analysis of these documents in Champion. If a grantee party will not agree to execute a RSHA, the Government party will not assert the expedited procedure.
Native Title Party evidence
The native title party lodged with the Tribunal an affidavit of its representative, Ms Anna Liscia, sworn on 12 July, 2010, appending written correspondence from Ms Liscia to the grantee party dated 9 April, 2010, and 3 June, 2010. The statement of contentions of the native title party, dated 12 July, 2010, noted that it relies on the information contained within the objection application lodged with the Tribunal on 9 March, 2010. In the affidavit of Ms Liscia, the outline of the history of negotiations between the parties is presented. The native title party contends that the representative of the grantee party informed the native title party that it would not enter into negotiations with the native title party. Neither the affidavit nor statement of contentions of the native title party addresses the criteria pursuant to s 237 of the Act.
Community or social activities (s 237(a))
Section 237(a) requires the Tribunal to assess whether a proposed future act is likely to interfere directly with the carrying on of the community and social activities of native title holders in relation to the relevant land or waters. The leading case on the interpretation of the section is Smith v Western Australia (2001) 108 FCR 442. French J dealt, firstly, with the requirement that the Tribunal assess whether a proposed future act was likely to directly interfere with the carrying on of community or social activities. His Honour said, at [23]:
“The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in paras (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term ‘likely’ in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance…. Consistently with the objects of the Act, the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.”
French J also dealt with the concept of direct interference. His Honour first pointed out that the Tribunal was required, in carrying out its predictive risk assessment, to make an evaluative judgment. He said, at para [26]:
“The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.”
French J then explained that the evaluation is contextual and, as such, the risk assessment must not be undertaken in isolation. His Honour said, at para [27]:
“In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial…. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
The material provided by the native title party included a Statement of Contentions (NTP SC) and the affidavit of the native title representative, Ms Anna Maria Liscia, sworn on 12 July, 2010.
The principle issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them. There are no submissions by the native title party which address current social or community activities of the native title party which may occur in or around the proposed tenement in relation to s 237(a) of the Act. The native title party has not provided any evidence to suggest the type (traditional or otherwise) of community and social activities that are currently conducted over the area of E52/2467 by the native title party, nor is there any reference to the frequency with which those activities might occur. The Government party states in its Statement of Contentions, that “there are no Aboriginal communities situated on the proposed tenements”.
The size of E52/2467 is 615.81 square kilometres, whilst the area of the Gingirana claim is approximately 12179.48 square kilometres. Consistent with previous Tribunal decisions, I find that the size of the proposed tenement, in the context of the much larger native title claim area, makes it less likely that the proposed exploration activity will interfere with any native title party’s community or social activities that may be conducted over the proposed tenement area.
Taking all these factors into account, I find that the exploration activity will not interfere with the community or social activities of the native title party in a substantial or more trivial way, as contemplated under s 237(a) of the Act.
Areas or sites of particular significance (s 237(b))
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. The Register kept by the DIA, pursuant to the AHA, shows there are no registered sites within the area of the proposed tenement, but this does not mean there may not be other sites or areas of particular significance to the native title party over the 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. The AHA protects all Aboriginal sites, whether on the Register or not.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at paras [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective 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 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), (at paras [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.
I adopt the findings of the Tribunal in Maitland Parker at paras [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court 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). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1.
Neither the contentions of the native title party, nor Ms Liscia’s affidavit, provides any evidence of Aboriginal sites located within the proposed licence area or any evidence of sites of particular significance to the native title party in accordance with their traditions. Evidence extracted from DIA’s Aboriginal Heritage Inquiry System shows that there are no registered sites within, or in the near vicinity of, the proposed tenement area. As there is no evidence from the native title party (or otherwise) as to the existence of any Aboriginal sites of particular significance to the native title party within the proposed tenement area, I cannot make a positive finding that there exist any sites of particular significance to the native title party within the proposed tenement area. I can see no reason why the protective regimes under the AHA should not be sufficient to ensure that there is unlikely to be interference with any sites of particular significance which may exist.
I am satisfied that the grantee party is aware of its responsibilities under the AHA and that it will comply with the AHA. However, the grantee party has provided no specific evidence of what it intends to do about the protection of sites, including whether it will conduct a heritage survey or otherwise consult with the native title party about them. It can be assumed, in my opinion, that the grantee party may exercise all the rights conferred by the tenement. This, however, does not necessarily result in a finding that there is likelihood of interference or major disturbance to sites of particular significance, or that the grantee party will not meet all of its statutory obligations.
The Government party will also place a condition on the grant that will require the grantee party to execute a RSHA in favour of the native title party within thirty days of a request by the native title party, such request to be made within ninety days of the grant. This provides the option for the native title party to ensure that a heritage survey, particularly in relation to the proposed tenement, is carried out.
I find that there is not likely to be a real risk of interference with any sites of particular significance to the native title party within the proposed tenement, as referred to in s 237(b) of the Act.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576, at paras [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as referred to in the previous paragraph) to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion at pages 386-388, paras [74]-[79], and the cases cited therein).
In this matter, the native title party has made no submissions or contentions in relation to s 237(c) and there is no evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely. There is no evidence that there will not be compliance with the regulatory regime of the Government party governing exploration activities, having regard to and the conditions imposed on the proposed tenement dealing with ground disturbing activities, including the standard requirement for rehabilitation of the land (Standard Conditions 1-4), as well as other conditions applying to the proposed tenement. I find that there is not likely to be major disturbance to land or waters within the meaning of s 237(c), in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E52/2467 to Montezuma Mining Co. Ltd is an act attracting the expedited procedure.
Neville MacPherson
Member
0
11
0