Champion v Western Australia
[2005] NNTTA 1
•1 February 2005
Reported at (2005) 190 FLR 362
NATIONAL NATIVE TITLE TRIBUNAL
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, [2005] NNTTA 1 (1 February 2005)
Application No: WO04/41
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Linda Champion on behalf of the Central West Goldfields People – WC99/29
(native title party)
-and-
The State of Western Australia (Government party)
-and-
Vosperton Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 1 February 2005
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – relevance of Regional Standard Heritage Agreement signed by grantee party considered – application not frivolous or vexatious (s 147) – comment on the use of s 109 in consideration of s 237 matters – not likely to be interference with the carrying on of community or social activities, sites of particular significance or major disturbance to land – act attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) ss 109, 147, 151(2), 237
Mining Act 1978 (WA) ss 20(5), 24, 26, 63, 66
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 57, 62
Cases:Andrews & Others v Northern Territory [2002] NNTTA 170; (2002) 170 FLR 138
Bruce Monadee & Ors (Ngarluma Indjibarndi) and Wilfred Hicks (Wong-goo-tt-oo)/Western Australia/Cossack Resources, NNTT WO02/290 & WO02/457, [2003] NNTTA 38 (26 February 2003), John Sosso
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103
Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Charles George Chitty, NNTT WO03/577, [2004] NNTTA 92 (1 October 2004), Daniel O’Dea
General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125
Jack Dann & Ors on behalf of the Unggumi Ngarinyin People/Western Australia/GPA Distributors Pty Ltd, [1995] NNTTA 43 (20 December 1995), Hon C J Sumner
Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso
Leonne Velickovic on behalf of the Widji People/Westex Resources Pty Ltd/Western Australia, NNTT WO03/386, [2004] NNTTA 13 (4 March 2004), Mr Dan O’Dea
Leonne Velickovic on behalf of Widji People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/6, [2004] NNTTA 70 (22 July 2004) Hon C J Sumner
Linda Champion and Others on behalf of the Central West Goldfields People; Leonne Velickovic and Others on behalf of the Widji People/New Hampton Goldfields Ltd/Western Australia, NNTT WF04/23, [2004] NNTTA 82 (14 September 2004), Hon C J Sumner
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54
Re Smith and Others [1995] NNTTA 31; (1995) 128 FLR 300
Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462
Roberta Thomas On Behalf Of The Waljen People/Western Australia/Sons Of Gwalia Ltd; Abador Gold NL; Acacia Resources, NNTT WO95/17, [1995] NNTTA 28 (24 November 1995), Hon Paul Seaman QC) [1996] 1 AILR 227
Silver & Others v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Northern Territory of Australia [2002] NNTTA 104; (2002) 169 FLR 303
Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke).
Wilma Freddie/Western Australia/Stephen Grant Povey, NNTT WO99/882, [2001] NNTTA 162 (19 December 2001), Jennifer Stuckey-Clarke
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner
Representative of the
native title party: Ms Elizabeth Sambo
Representative of the
Government party: Mr Clyde Lannan, Department of Industry & Resources
Counsel for the
Government party: Ms Karen Dougall, State Solicitor’s Office
Representative of the
grantee party: Mr Garry Billing
REASONS FOR DETERMINATION
Background
On 11 February 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E26/107 and E26/108 to Vosperton Resources Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, ones which can be done without the normal negotiations required by s 31 of the Act).
On 19 April 2004 Linda Champion, a named applicant and representative of the Central West Goldfields People (‘the native title party’/‘the objector’) made an expedited procedure objection application to the Tribunal, relying on all three limbs of s 237 of the Act. The objector’s application for a determination of native title (WC99/29) was entered on the Register of Native Title Claims from 4 October 1999.
The grant of E26/107:On 17 September the Tribunal received correspondence from the Government party advising that it intended to grant E26/107 to Vosperton Resources on the basis that any area overlapping the claim of the Central West Goldfields People would be excised from it. Consequently, E26/107 was granted on 6 October 2004. The Tribunal therefore no longer has jurisdiction to determine the objection application with respect to E26/107 (s 148(a) of the Act). Hereafter these reasons pertain only to the grant of proposed licence E26/108.
The area, location and extent to which E26/108 (‘the proposed licence’) overlaps the registered native title claim of the Central West Goldfields People is as follows:
199.61 square kilometres, located 24 kilometres easterly of Kambalda in the City of Coolgardie/Kalgoorlie-Boulder, overlap 44.67 %
In addition three other registered claim groups overlap the proposed licence as follows and have the status of native title parties:
Widji People (WC98/7) – 94.43% overlap;
Ngadju (WC99/2) – 29.13% overlap; and
Central East Goldfields People – 26.21% overlap.
For the record I observe that two unregistered claims also overlap the proposed licence as follows:
Gubrun – 73.27% overlap; and
Kalamaia Kabu(d)u People – 73.27% overlap
On 13 August 2003 the Widji native title party also lodged an expedited procedure objection application with the Tribunal in relation, among others, to the proposed licence which was dismissed on 20 July 2004 on the grounds that the native title party had failed within a reasonable time to proceed with the objection and to comply with directions of the Tribunal (s 148(b)) (Leonne Velickovic on behalf of Widji People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/6, [2004] NNTTA 70 (22 July 2004) Hon C J Sumner). No objection was lodged by either the Ngadju or Central East Goldfields native title parties.
Conduct of the Inquiry
On 29 April 2004, in accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions were in the usual form which, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate or finalise agreement over the grant of the tenement usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage.
At an adjourned Preliminary Conference convened on 15 June 2004, the grantee party advised that although consideration had been given to an alternative heritage agreement provided by the native title party (‘CWAHA’), it had previously executed a Regional Standard Heritage Agreement (‘RSHA’) which had been agreed between the Government party, the Goldfields Land and Sea Council (‘GLSC’) (the Native Title Representative Body (‘NTRB’) designated under the Act for the area of the proposed licence) and peak industry bodies as appropriate for the protection of Aboriginal Heritage and which if agreed to by the grantee party will result, where the GLSC is acting for a native title party, in either no objection being lodged or an objection already lodged being withdrawn. The RSHA executed by the grantee party related only to the Ngadju claimants and was sent to the GLSC which was acting for them. No other RSHA has been executed by the grantee party. The grantee party considered it had satisfied the Government party’s requirements to enable the grant of the proposed licence by utilising the expedited procedure and advised it was not prepared to consider further an alternative heritage agreement (although later it did give further consideration to it). As a consequence of the failure to reach agreement the initial directions were amended on 12 July 2004 with the consent of all parties to bring the dates for compliance forward to enable an inquiry to be conducted as early as practicable.
Subsequently, discussions were held by officers of the Tribunal with members of the Central West claimant group to see whether the RSHA could be modified to make it acceptable to them by removing references to the GLSC. On 5 November 2004 I was advised at a Listing Hearing that the objector had decided not to endorse a modified RSHA and had approved its own CWAHA. Following this advice the grantee party gave further consideration to the CWAHA but did not find its terms acceptable, although it was still prepared to enter into the RSHA with the native title party. This was unacceptable to them and an inquiry became inevitable.
The Government party and native title party have both provided contentions and evidence. The grantee party has chosen to rely on Government party evidence but Mr Garry Billing, on behalf of the grantee party, provided some oral evidence about the grantee party’s intentions relating to the protection of Aboriginal Heritage. During the course of the preliminary proceedings it became apparent that the relevance of the RSHA to this inquiry (i.e. to the matters covered by s 237 of the Act) would be an issue to be considered and contentions were sought from all parties on it including on whether the Government party intended to make the grant of the proposed licence conditional on compliance with the terms of that agreement whether executed or not by the native title party. Submissions and evidence detailing the history of the implementation of RSHAs provided by the Government party in another Central West Goldfields native title party objection matter (WO04/43) were also considered in this matter. In addition, I gave leave for Mr Jerome Frewen, representing the Widji native title party in other objection matters currently before the Tribunal to make submissions in this matter on the basis that the same issue also arises in those matters.
Ms Elizabeth Sambo, representative for the native title party, requested that the objection be heard ‘on country’. The Government and grantee parties have submitted that the matter should be dealt with ‘on the papers’ before the Tribunal. In recent times in Western Australia, the Tribunal has not found it necessary to conduct an oral hearing ‘on country’ in expedited procedure matters and there is nothing peculiar to this matter which makes such a hearing necessary. I am satisfied that I can adequately deal with the matter on the papers in accordance with s 151(2) of the Act.
Legal Principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[34]). I adopt those findings for the purposes of this inquiry. The Mining Act has recently been amended including in relation to exploration licences. The amendments come into effect on 30 March 2005 but do not apply to exploration licences applied for or granted prior to that date. Whether these amendments will be relevant to future expedited procedure inquiries will need to be considered after the amendments come into effect.
Government party’s policy on use of Regional Standard Heritage Agreements
The Government party’s evidence with respect to this issue is contained in a letter dated 10 December 2004 (provided in objection matter WO04/43) from the Department of Industry and Resources (‘DoIR’) to the Tribunal setting out the history of implementation of RSHAs and accompanying documents, viz:
Final Report of Technical Task Force on Mineral Tenements and Land Title Applications (November 2001);
Information Paper issued by DoIR (27 November 2003);
Guidelines for Consultation with Indigenous People by Mineral Explorers (DoIR, Tenure and Native Title Branch, July 2004);
Information page summarizing site survey requirements set out in the GLSC RSHA; and
Facsimile letter dated 1 November 2004 from Mr Phil Mirabella of DoIR to the Tribunal.
In April 2001, the Government party established a Technical Taskforce to assess how mineral and land title applications could be dealt with more efficiently, while at the same time recognising and protecting the native title rights of Indigenous people. The Taskforce was facilitated by a Member of the Tribunal, Mr Bardy McFarlane (who conducts future act mediations in Western Australia but does not conduct or be otherwise involved in any future act or expedited procedure objection inquiries) and included representatives of the Government party, NTRBs and industry.
The Taskforce considered and made recommendations on a wide range of issues. It identified that the protection of sites of particular significance to Aboriginal native title claimants was the basis for the majority of objections to the expedited procedure. To assist in the removal of the existing backlog of exploration and prospecting licence applications and to prevent it recurring the Taskforce recommended that all existing and new applicants for exploration and prospecting licences be required to enter into a heritage protection agreement before notice of the application is given under s 29 of the Act. The proposal was that where a heritage protection agreement was entered into by a grantee party, the exploration or prospecting licence would be notified as attracting the expedited procedure and no objection would be lodged by registered native title claimants who had accepted the standard agreement. Where a grantee party refused to enter into a heritage agreement the Government party would not use the expedited procedure and the application would be dealt with under the normal right to negotiate provisions of the Act (s 31).
Following a recommendation of the Taskforce a Heritage Protection Working Group was established in July 2002 to finalise the proposed heritage protection agreements comprising Mr McFarlane as independent facilitator and representatives of Government agencies, Native Title Representative Bodies (NTRBs) and industry.
To date RSHAs have been developed with the support of the relevant NTRB to give effect to the Taskforce’s recommendation, for five of the six representative body areas viz, Goldfields (Goldfields Land and Sea Council), Murchison Gascoyne (Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation, Pilbara (Pilbara Native Title Service), South West (South West Aboriginal Land and Sea Council) and Central Desert (Ngaanyatjarra Council). In the Central Desert Area the RSHA does not apply over Aboriginal Reserve Land. In some areas, registered claimants are still to endorse the use of the RSHA negotiated on their behalf (for instance, some claimant groups in the area covered by Yamatji and the Pilbara Native Title Service) and negotiations with the Kimberley Land Council are continuing in an attempt to conclude an agreement for that area. In the GLSC area, claimants represented by the GLSC do not lodge objections to the expedited procedure where grantee parties have sent a properly executed copy of the RSHA to the GLSC.
The procedure adopted is for DoIR to send a RSHA to a grantee party with an information package explaining the policy, the grantee party signs the RSHA and forwards it to the relevant NTRB or native title party if not represented by a NTRB and the grantee party advises DoIR by affidavit or statutory declaration that the RSHA has been signed and sent to the native title party. Where there is an Alternative Heritage Agreement (AHA) in place between the grantee party and native title party, the grantee party is to provide a statutory declaration of the existence of the AHA. On receipt of the grantee party’s confirmation that it has signed the RSHA or a AHA, DoIR gives notice of the grant under s 29 of the Act and asserts that the expedited procedure is attracted. If a RSHA or AHA is not signed the Government party will give notice under s 29 without asserting the expedited procedure and the normal right to negotiate provisions apply. Native title claimants who accept the RSHA are not expected to lodge an objection.
The Government party’s evidence is that while each RSHA is region specific they all include:
a commitment to co-operate to ensure the ongoing protection of Aboriginal heritage;
an obligation to take into account activities that could significantly affect cultural heritage and to discuss proposed activities and conduct heritage surveys where appropriate;
capped daily rates for survey costs and administration fees agreed by both parties which are region specific;
certainty for grantee parties in undertaking activities for the life of the tenement; and
once-only execution of an agreement for multiple exploration and prospecting licences within a claim area.
Another aspect of the policy (explained in correspondence from DoIR to the Tribunal dated 1 November 2004) is that DoIR only requires a RSHA to be signed with respect to one native title party even where there is more than one registered claim over the proposed tenement area. The explanation for this policy is that only requiring one survey will keep costs down to a minimum whereas requiring multiple surveys with different claimant groups could be cost prohibitive and detrimental to exploration. Where a native title party who has not received and agreed to a RSHA has lodged an objection the Government party will support the matter going to inquiry. While this policy is currently under discussion with at least one NTRB the Tribunal has not been notified of any change to it. It was pursuant to this policy that in this case the Government party asserted the expedited procedure after the grantee party signed and sent a RSHA to the Ngadju native title party only even though the Ngadju claim only covered 29.13 per cent of the proposed licence area.
Government party contentions on the relevance of a RSHA
The Government party’s contention on the relevance of a RSHA was elaborated on and modified during the course of the preliminary proceedings. Its original submission (Contentions of 27 July 2004) was that the grant of the proposed licence is not likely to interfere with areas or sites of particular significance to the native title party in accordance with their traditions (s 237(b)) for reasons which included reference to the protection offered by the Aboriginal Heritage Act 1972 (WA), the Government party’s regulatory regime and that the grantee party had executed a RSHA and provided it to the objector. In fact, as noted above the RSHA had only been provided to the GLSC acting on behalf of the Ngadju native title party and not the objector. The Government party contends that the execution of the RSHA is a relevant matter to be taken into account in relation to s 237(b) because it demonstrates the grantee party’s willingness to meet the concerns of the objector in respect of site protection. It relies on Federal Court and Tribunal decisions that s 237 requires the Tribunal to make a predictive assessment about what is likely to happen and is not confined to a consideration of the legal rights conferred by the grant (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 450 [23]; Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [68]-[72]) and cases where it has been held that in this context the attitude of grantee parties to the protection of Aboriginal heritage and the steps they are prepared to take to minimise the likelihood of interference with sites can be taken into consideration by the Tribunal (eg. Silver & Othersv Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [25]-[32], [122], [133]).
After further consideration of its original submission the Government party proposed to place the following condition (‘the proposed condition’) on the grant of the proposed licence and on future grants where the situation presented in this objection arises:
‘The Licensee, if so requested in writing by the Central West Goldfields people, the applicants in Federal Court application no. WAG 65 of 1998 (WC99/29), such request being sent by pre-paid post to reach the Licensee’s registered address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Central West Goldfields people the Regional Standard Heritage Agreement endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’
The Government party contends that this condition will provide adequate heritage protection for the native title party in the event that the Tribunal finds that the expedited procedure is attracted.
Contentions of the native title party
The essential contention of the native title party is that the Tribunal cannot dismiss an objection or determine that the expedited procedure is attracted solely on the basis that a grantee party has signed a RSHA which has been agreed to by a native title party who is not an objector or signed and provided a RSHA to a native title party who has objected but who has not executed it.
The native title party contends that it was not involved in the negotiation about the RSHA (although it appears that when some of the negotiations about the RSHA were occurring the Central West native title party were represented by the GLSC), that it is not bound by it and that it is not acceptable to them because of its failure to deal with certain issues covered by the CWAHA. They also contend that the Government party’s current procedures relating to RSHAs are not a proper way to determine whether notice of the expedited procedure should be given, particularly as agreement about the RSHA is not required of all native title parties.
The native title party also contends that the regulatory regime for the protection of sites of particular significance is inadequate and not sufficient to make it unlikely that interference with them will occur. The contentions provided by Mr Frewen were to a similar effect.
The grantee party and the RSHA
On 5 November 2004 at a Listing Hearing Mr Billing advised that the grantee party intended to comply with the provisions of the Aboriginal Heritage Act 1972 (WA) and remained willing to sign the RSHA with the native title party if they were willing to accept that agreement. Should the native title party not be willing to do so, and it was not possible to complete a heritage survey, it is the grantee’s intention to apply to the DoIR for an exemption from the expenditure requirements in each year that the tenement remains granted. Mr Billing also raised the possibility of conducting an aerial survey of the tenement to assess the potential resource and, if it was necessary to conduct ground disturbing works in the area of the tenement overlapped by the Central West Goldfields’ claim, might consider engagement of a private anthropologist to conduct the necessary heritage surveys.
Findings in relation to the relevance of the RHSA
My findings with respect to the RSHA are that the existence of a RSHA executed by a grantee party even combined with the Government party’s proposed condition does not provide a basis for an automatic finding in all cases that the expedited procedure is attracted even if s 237(b) is the only matter in issue. In cases such as the present one, even though an RSHA has been executed by the grantee party, there is no actual agreement between the grantee party and an objector who does not accept it. Obviously objections may be made on the basis of factors in ss 237(a) and 237(c) in which case the existence of a RSHA would be of even less direct relevance. However, the existence of a RSHA and the proposed condition are not completely irrelevant to the Tribunal’s inquiry.
I accept the Government party’s submission that in making a predictive assessment about the likelihood of interference with sites of particular significance the intention of the grantee party relating to their protection can be taken into account. In cases where it has been established that there are sites of particular significance to a native title party in accordance with their traditions and particularly where there is an area rich in sites covered by the grant of an exploration licence the Tribunal has found that it is of great importance to have some evidence of how the grantee party will exercise its rights and to what extent the grantee party will go in ensuring that the risk of interference is minimised (Ward v Northern Territory of Australia [2002] NNTTA 104; (2002) 169 FLR 303 at [88]; Wilma Freddie/Western Australia/Stephen Grant Povey, NNTT WO99/882, [2001] NNTTA 162 (19 December 2001), Jennifer Stuckey-Clarke at [49] and Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner at [19]).
The Government party is entitled to make a decision on whether to give notice that the expedited procedure is attracted based on agreement with only one native title party. However, while not irrelevant the execution of only one RSHA with a native title party who is not an objector or a native title party whose claim, as in this case, only relates to less than a quarter of the tenement area can only demonstrate the grantee party’s general intention with respect to the protection of sites. What weight should be given to the execution of a RSHA will depend on the overall circumstances. Greater weight may be given to a grantee party’s intention where it has executed an agreement related to a native title party who has objected to the expedited procedure. It seems to me that one difficulty with the Government party’s procedures is demonstrated by the facts of this case - the obligation to conduct an Aboriginal Heritage survey is limited to only 29.13 per cent of the proposed licence area.
For a grantee party, compliance with the Government party’s requirements gets them through the gate into the expedited procedure but if there is an objection from a native title party who does not accept the RSHA then the grantee party will need to give consideration to what it is prepared to do to resolve heritage concerns of that party if in fact areas or sites of particular significance to them exist in the area. Executing a RSHA in relation to them after the objection is lodged or (as in this case) expressing a preparedness to do so will be a relevant factor that the Tribunal can have regard to as some evidence of the grantee party’s intention with respect to the protection of sites.
The Government party’s proposed condition also adds some weight to the effectiveness of the Government party’s regulatory regime and makes interference with sites less likely to occur. At any time it will be open to a native title party to insist on at least the level of site protection which has been agreed generally by Government, industry and NTRBs. While this may not be their ideal or preferred position the Government party’s proposed condition establishes what is in effect a minimum standard which will always be available to them. In my view the proposed condition enhances the existing regulatory regime and can be taken into account as one of the relevant factors in determining in a particular case whether interference with sites of particular significance is likely.
The Tribunal’s task in relation to s 237(b) will continue to be to assess the evidence relating to whether there are sites of particular significance over the tenement area and then whether the Government party’s regulatory regime is sufficient in the circumstances of the particular case to make interference with them unlikely. In making this predictive assessment the Tribunal can have regard to the grantee party’s attitude to the RSHA (particularly if the grantee party is prepared to enter into it with the actual objector) and other evidence of the grantee party directed towards the protection of Aboriginal heritage.
The Tribunal has found that the Government party regulatory regime will usually but not always mean that interference with sites of significance is unlikely (see Little at [75]-[77]; Walley at [50]-[51]). In cases where an area is rich in sites and the grantee party has not provided any information about its intention relating to their protection the Tribunal has found that the expedited procedure is not attracted because interference is likely without the negotiations normally required by the Act (see for example cases cited above in para [30]). It remains the case that the Tribunal will continue to weigh up the nature and extent of sites and whether the Government party’s regulatory regime is sufficient to make interference with them unlikely. A RSHA and the proposed condition can be considered in this context.
Further contentions of the Government party
The Government party further submitted that the objection should be dismissed on the basis that it was frivolous or vexatious (s 147), a power which the Tribunal has held can be exercised at any time prior to conclusion of the proceedings (Dixon v Northern Territory of Australia [2002] NNTTA 48; (2002) 169 FLR 103 (at [14])). The Government party submits that if the primary issue is one of heritage and if the primary reason for rejecting the RSHA in preference to the CWAHA relates to the financial gains to the native title party or to political conflict between the native title party and GLSC and not to heritage based concerns then the application should be dismissed pursuant to s 147 of the Act.
The High Court summarised the relevant tests to determine whether the strike out of an action is appropriate on these grounds (General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 per Barwick C.J. at 129):
‘It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [(1949) 78 CLR 62] where he says [at p 91]: “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’
Tribunal Member John Sosso has considered s 147 of the act in Dixon and Andrews & Others v Northern Territory [2002] NNTTA 170; (2002) 170 FLR 138. Dismissal is only justifiable where the proceedings are ‘obviously unsustainable’ (Dixon at [14]).
In Andrews the Tribunal said [74]:
‘[74] Finally, while noting that the material lodged in objection DO01/125 is less than satisfactory, not only is there no basis for a jurisdictional challenge to this objection, there is also no proper basis for dismissing it as either frivolous or vexatious. It is a mistake to confuse a weak objection for a frivolous or vexatious one. The strength or weakness of a submission is often in the eyes of the beholder. However, a frivolous or vexatious submission is not just a weak one, but one that lacks merit and one which requires no exercise of cognitive vigour in assessing its prospects. In order to characterise an expedited procedure objection application as being frivolous or vexatious, it must be manifestly obvious that such an application is unsustainable and doomed to fail: see Dixon v Northern Territory of Australia (2002) 169 FLR 103 at 106 [14]. It certainly would not be fair or appropriate to be so dismissive of the materials lodged on behalf of DO01/125. While, I am not satisfied that they have much weight in a section 237 assessment, nonetheless they require careful consideration and not a precipitative exercise of the discretion vested in a Member under s 147.’
In applying these principles to the current situation I find that there is no basis for a s 147 dismissal. I accept that the primary issue in these proceedings is one of heritage protection, something which is reinforced by the objector when they say in their objection application that the objection will be withdrawn if the grantee party agrees to a CWAHA and carries out a heritage survey. However, the application also asserts that the objection should be upheld because of s 237(a) and s 237(c) factors and contentions have been filed in respect of them. The affidavit of Ms Elisabeth Sambo deals with s 237(a) as well as s 237(b) issues. There is also nothing more than an assertion from the Government party that the only factor motivating the objector in insisting on the CWAHA is the prospect of monetary gain. There is no direct evidence to this effect and it is impossible to draw the necessary inference from the fact that payments to the native title party are greater under the CWAHA than the RSHA. In fact, there are a number of ways in which the CWAHA differs from the RSHA, of which more advantageous financial consideration is one. For example, the CWAHA not only differs in its financial terms but in its survey methodology, including:
no option to use the “Site Avoidance Model” as defined in the RSHA;
the requirement for inaccessible areas to be excised from exploration activities until such time as the area can be accessed to complete a survey; and
the requirement for the grantee to meet with the native title party “prior to the commencement of each field season to arrange further heritage surveys if considered necessary by parties”.
The objector points out that as they are not represented by the GLSC it is legitimate to claim some additional payment for administrative costs. The Tribunal is not required to pass judgement on this position except to say that it offers some explanation for the native title party’s negotiating position and further reduces the force of any argument that the objection is frivolous or vexatious.
The Government party has also produced no evidence to support its assertion about difficulties with the GLSC being the reason for the objector’s failure to agree to the RSHA. While the Tribunal is aware of difficulties within the Central West Goldfields claim group (see for example Linda Champion and Others on behalf of the Central West Goldfields People; Leonne Velickovic and Others on behalf of the Widji People/New Hampton Goldfields Ltd/Western Australia, NNTT WF04/23, [2004] NNTTA 82 (14 September 2004), Hon C J Sumner) and aware that they no longer want the GLSC to represent them, this does not establish that the dispute is motivating the objector to lodge baseless objections.
A related submission made by the Government party was that even if the Tribunal found that the expedited procedure was not attracted and the normal negotiations under s 31 of the Act took place but did not result in an agreement, any arbitral determination was unlikely to provide greater benefit to the native title party than under the RSHA. The Government party submits that given the pragmatic way the Tribunal is required to operate under s 109 (i.e. to carry out its functions in a fair, just, economical, informal and prompt way) to make a determination that the expedited procedure did not apply would be a waste of time and resources for the Tribunal and parties as the ultimate outcome could only be an agreement or determination similar to the terms of the RSHA.
This submission is misconceived. The task of the Tribunal is to make a determination based on the factors in s 237. This requires consideration of evidence relating to them. It would be inappropriate to use a section of the Act relating to how the Tribunal is to operate in a procedural sense to the determination of this substantive and specifically defined issue. In any event, acceding to the Government party’s submission could not be said to be fair or just to the native title party as they would be deprived of the important right to negotiate accorded to them by the Act. It cannot be said that s 31 negotiations or a future act determination would necessarily produce exactly the same result as the RSHA.
My finding is that while on the face of it heritage protection is the primary issue, the objection application is based on all limbs of s 237 and contentions have been made in relation to all three of them. It would be contrary to principle pre-emptively to make a determination that the expedited procedure is attracted without giving consideration to the evidence tendered. The Government party has not said that Aboriginal Heritage is the only issue but that it is the primary one. This implies even on the Government party’s case that there may be other subsidiary issues. The fact that the Government party (or indeed the Tribunal on the face of it) considers them to be of little merit is not sufficient to justify summary dismissal. As Member Sosso said in Andrews, a weak case is not to be confused with a completely baseless one.
Finally, the Government party said that the Tribunal should endorse the use of the RSHA over the CWAHA. It says that the RSHA was settled after negotiations over 12 months involving the designated NTRB under the Act for the Goldfields area, Government and industry and considered issues relevant to the Goldfields; and that the RSHA was a more broad based, reasonable document recognised generally by parties rather than the CWAHA which has been prepared for the objector’s interests alone. This submission cannot be accepted. It is not the role of the Tribunal in these proceedings to endorse one or other of the agreements. The Tribunal’s role is to conduct an inquiry and make a determination whether the expedited procedure is or is not attracted after consideration of the matters in s 237. The existence of the RSHA may be relevant to this task in the way specified above but the fact that the RSHA was one of general application is not of significance in this context.
The contentions of both the Government and native title parties referred to a decision of the Tribunal (Leonne Velickovic on behalf of the Widji People/Westex Resources Pty Ltd/Western Australia, NNTT WO03/386, [2004] NNTTA 13 (4 March 2004), Mr Dan O’Dea) which they both said held that the existence of the RSHA was irrelevant to an inquiry under s 237 of the Act. The relevant passage is:
‘[19] At paragraph 16 of the submission, and during the course of various preliminary hearings in this matter, the Native Title party’s representative has put the view that the expedited procedure should not apply if the Grantee refuses to enter a heritage agreement. The point needs to be made that the question of whether such an agreement is accepted or rejected by the Grantee party during the course of any discussions, that take place between the parties subsequent to the lodgement of an objection to the application of the expedited procedure, is irrelevant to the task the Tribunal must undertake when it comes to assess whether the expedited procedure applies in a matter. Section 237 makes it clear that if an act is not likely to interfere directly with the carrying on of the social or community activities of the Native Title party, not likely to interfere with sites or areas of particular significance in accordance with the traditions of the Native Title party or is not likely to involve major disturbance or create rights, the exercise of which is likely to involve major disturbance, then the expedited procedure can apply. The Government party’s option to include a statement that the expedited procedure applies pursuant to s 29(7) of the NTA is ‘entirely unfettered’. (Holt v Manzie [2001] 114 FCR 282 at 298). In some parts of Western Australia the Government party is exercising, or proposing to exercise, its discretion in matters of this nature after determining whether a Grantee party is prepared to enter into a generic regional agreement relating to the protection of Aboriginal heritage. In the event the Grantee party agrees to enter such an agreement, a statement that the expedited procedure applies is included in the s 29 notice. If the Grantee party refuses to enter the agreement, the statement relating to the expedited procedure is not included in the s 29 notice and the normal negotiation procedure applies pursuant to s 31 of the NTA. The motive for such a procedure would appear to be to encourage grantee parties to enter agreements which protect Aboriginal heritage and simultaneously avoid a multitude of objection applications. The objection currently under consideration was not subject to the Government party’s new approach, however the Native Title party appears to confuse the manner of the exercise of the Government party’s discretion under s 29(7) and the law relating to s 237. The manner in which the Government party chooses to exercise its discretion under s 29(7) is a matter which has no impact on the nature of the task that falls to the Tribunal when considering the merits of any particular objection application. The task of the Tribunal is confined to an assessment of whether the proposed act is one which offends any of the limbs of s 237 or not.’
In my view this passage does not support the contentions. Member O’Dea was directing his attention to the submission of the native title party that the very act of refusing to sign a heritage agreement was sufficient to make a determination that the expedited procedure was not attracted because interference with sites of particular significance would be likely. The Tribunal has previously found that there is no statutory or legal obligation on a grantee party to fund or facilitate an Aboriginal heritage survey (Bruce Monadee & Ors (Ngarluma Indjibarndi) and Wilfred Hicks (Wong-goo-tt-oo)/Western Australia/Cossack Resources, NNTT WO02/290 & WO02/457, [2003] NNTTA 38 (26 February 2003), John Sosso at [13] and cases cited therein).
My interpretation of Member O’Dea’s comments is that he was reaffirming the Tribunal’s well-established position. Failure to sign a heritage protection agreement cannot lead to a summary finding that the expedited procedure is not attracted. Apart from anything else there is still the need in an inquiry to examine whether there are such sites. If Member O’Dea was in fact saying that the execution of a heritage agreement is completely irrelevant to making a finding in relation to a s 237(b) issue (which I doubt) then I respectfully disagree with him. For the reasons outlined above the execution of an agreement to protect sites by a grantee party may be relevant to deciding whether there is likely to be interference with sites. Reference to another determination of Member O’Dea’s supports my interpretation of his position (Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Charles George Chitty, NNTT WO03/577, [2004] NNTTA 92 (1 October 2004), Daniel O’Dea). In this case (at [21]) he had regard to the fact that the grantee party had executed the GLSC RSHA and would presumably intend to operate in accordance with it to protect places of heritage significance. The matter involved the Narnoobinya Family Group who had not signed the RSHA and was therefore similar to the present matter. This case is consistent with my findings in the present matter that the intention of the grantee party with respect to protection of sites is relevant to the decision making task under s 237(b).
With respect to the balance of Member O’Dea’s comments I am in full agreement. The manner in which the Government party decides whether to give notice that the expedited procedure is attracted is something it has a discretion to determine and not one which can be challenged before the Tribunal (see also Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 (Carr J) at 42). Contentions of the native title party which challenge the general approach of the Government party to the use of the RSHA are rejected.
Evidence in relation to the proposed act
Government party documentation reveals that the area of land subject to the grant of E26/108 to be:
Pastoral Lease 3114/1992, known as Mount Monger, vested in Jarac Pty Ltd – encompassing 83.2% of the area of the proposed licence;
Crown Reserve 18053, a Water Catchment Area vested in the Water and Rivers Commission – encompassing 2.3% of the proposed licence area;
Crown Reserve 17175, said to be for the purpose of a Trignometrical Station; and
Unallocated Crown land, encompassing 14.2% of the proposed licence area.
There are neither Aboriginal communities nor sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) within or in the immediate vicinity of the proposed licence.
Documentation lists 112 dead tenements overlapping a portion of the proposed licence. Of that number, 27 tenement applications are said to have been ‘withdrawn’ and another 26 ‘refused’, leaving a total of 59 ‘dead’ tenements comprising prospecting or exploration licences, gold mining leases, mining leases and mineral claims. A further five overlapping prospecting licences and one exploration licence are said to be ‘pending.’ In addition, mapping and data provided by the Government party shows a total of 1,926 prospecting licences and 801 exploration licences granted over the entire area affected by the claim of the Central West Goldfields people since 4 October 1999, evidencing a history of extensive exploration and mining activity and continued interest in the area.
In addition to the Widji native title party objection (WO04/6) which was dismissed pursuant to s 148(b) a further 20 objections have been received from the period 1997 to date in relation to tenements overlapping or abutting the proposed licence, the majority being finalised by way of objection withdrawal or dismissal following withdrawal of the tenement application. An objection by the Widji people regarding the grant of E26/95 (WO03/386), which abuts the north western portion of E26/108 was determined, expedited procedure applies, by Tribunal member Daniel O’Dea on 4 March 2004. Objections in relation to overlapping tenement applications E26/97, E15/764 and E26/104 remain active while parties negotiate agreements or comply with directions for the conduct of the inquiry.
The grant of the proposed licence will to be subject to the endorsements and conditions set out hereunder:
‘EXPLORATION LICENCE No. 26/108
ENDORSEMENTS
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act, 1972.
Consent to mine on Water Catchment Area Reserve 18053 given on __/__/__ subject to the following endorsement:-
2. The Licensee’s attention is drawn to the provisions of:
·Water and Rivers Commission Act 1995;
·Country Areas Water Supply Act 1947;
·Metropolitan Water Supply Sewerage and Drainage Act 1909;
·Rights in Water and Irrigation Act 1914; and
·Draft Environmental Protection Groundwater Policy 1998.
CONDITIONS
1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.
2. All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Industry and Resources (DoIR). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Office, DoIR.
3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration programme.
4. Unless the written approval of the Environmental Office, DoIR is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
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.
Consent to mine on Water Catchment Area Reserve 18053 given on ….200.. subject to the following conditions:-
7. Written notification, where practicable, of the timeframe, type and extent of proposed ground disturbing activities being forwarded to the Water and Rivers commission Kalgoorlie seven days prior to commencement of those activities.
8. Any significant waterway (flowing or not), wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Waters and Rivers Commission.
9. The rights of ingress to and egress from the Licence being at all reasonable times preserved to officers of Water and River Commission for inspection and investigation purposes.
10. The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Waters and Rivers Commission’s Guidelines an Water Quality Protection Notes.
11. All proposed exploration activities within Public Drinking Water Source Areas complying with Water and Rivers Commission’s Water Quality Protection Note Land Use compatibility in Public Drinking Water Source Areas..
12. All Mining Act tenement activities within Public Drinking Water Source Areas being prohibited unless the prior written approval has been obtained from Water and Rivers Commission.
13. All Mining Act tenement activities are prohibited within 2 kilometres of the maximum storage level of a reservoir including the reservoir itself, unless the prior written approval of the Water and Rivers Commission is first obtained.
14. Storage and use of hydrocarbons and potentially hazardous substances requiring the prior written approval or appropriate permits from Water and Rivers Commission.
15. All hydrocarbons or other pollutant spillage being reported to Water and Rivers Commission. Remediation being carried out to the satisfaction of Water and Rivers Commission.
16. All Mining Act tenement activities are prohibited with a 300-metre radius of any observation well in a Public Drinking Water Source Priority P1, P2 & P3 Areas unless the written approval of the Water and Rivers Commission is first obtained.
17. All Mining Act tenement activities are prohibited within a 500-metre radius in a P1 areas or a 300-metre radius in a P2 or P3 area of any Public Drinking Water Source production well or dam, unless the written approval of the Water and Rivers Commission is first obtained.
18. Activities requiring the abstraction of groundwater are prohibited unless a bore construction and abstraction licence has been granted by Water and Rivers Commission.’
Endorsement 1 and Conditions 1-6 inclusive are standard clauses applicable to the grant of all exploration titles. Additional endorsements and conditions apply to the proposed licence in recognition of its geographic situation within a Water Catchment Area.
In addition to these endorsements and conditions the Government party draws attention to ss 24 and 26 of the Mining Act 1978 (in relation to consent and conditions for mining on Reserve land), s 20(5) of the Mining Act (in relation to conditions for mining on pastoral and Crown lands), and s 63 of the same Act, which lists conditions to be complied with by the licence holder. The Government party contends that requirement for compliance with these conditions should the proposed licence be granted ensures that the act is not likely to interfere with the carrying on of community and social activities (s 237(a)) by the native title party in relation to the area of land concerned. Reference to the regulatory conditions on exploration licences is a standard part of the Government party’s contentions in expedited procedure inquiries. They are referred to in Walley (at [24]-[31]). Whether any of these conditions assist in ensuring that there will not be interference with the community or social activities of the native title party will depend on the facts of each case (see for example, reference to the limitations on relying on s 20(5) of the Mining Act in Re Smith and Others [1995] NNTTA 31; (1995) 128 FLR 300 at 310-312; Jack Dann & Ors on behalf of the Unggumi Ngarinyin People/Western Australia/GPA Distributors Pty Ltd, [1995] NNTTA 43 (20 December 1995), Hon C J Sumner at 9-10).
In relation to s 237(b) of the Act, the Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA), to which the grantee party’s attention is drawn upon grant of the proposed licence, would protect areas or sites of particular significance from interference. In addition, as already explained, the grantee party has executed a RSHA.
The Government party also relies on a document entitled “Guidelines for Consultation with Indigenous People by Mineral Explorers”, distributed by the Tenure and Native Title Branch of the DoIR in July 2004. These Guidelines summarise the relevant provisions of the following Acts as they relate to mining and Aboriginal heritage: Aboriginal Heritage Act 1972 (WA); Aboriginal Affairs Planning Authority Act 1972 (WA); Aboriginal Communities Act 1979 (WA); Mining Act 1978 (WA); Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); and Native Title Act 1993 (Cth). The Guidelines also clarify State Government policy with respect to the protection of Aboriginal heritage, and the resulting consultation and survey process.
Native title party contentions and evidence
The native title party contends that the grant of the proposed licence will impact on all three limbs of s 237 of the Act for the following reasons:
Members of the native title party visit the area in and around Mount Monger Station to hunt and gather traditional foods, bush medicines and materials to manufacture traditional tools and implements. “The grant of the tenement will result in large areas of their traditional lands there being closed off to the Objectors while exploration and associated activities are being carried out.”
Intensive exploration will destroy food “sometimes beyond regrowth” and cause the evacuation of wild game.
Use of the area by elders to educate younger native title party members in the traditional methods of hunting and gathering will be curtailed or prevented.
The destruction of the “spirituality” of the land which will occur as a result of the grant will cause the spiritual link to the land to “be diminished and commence to disintegrate, as has happened historically to other Aboriginal communities that have lost their link with the land”. The native title party contends that this impact will be “substantial in nature”.
The provisions of the Aboriginal Heritage Act apply only to registered sites. If the grantee party is not aware of the presence of sites “uneducated and ignorant exercise of the rights of the Grantee party” may lead to the destruction of shrines and holy places, which will in turn have a substantial impact on both the native title party and the wider Aboriginal community.
Section 62 of the Aboriginal Heritage Act provides “an escape route for parties intent on not abiding by the spirit of the Act” (this section provides that “… it is a defence for the person charged to prove that he did not know and could not reasonably be expected to have known, that the place or object to which the charge relates was a place or object to which this Act applies.”). The native title party considers the intentions of any grantee party not willing to consult with the native title party regarding heritage “suspect”.
The grantee party has not entered into a heritage agreement with the native title party.
The rights conferred by the grant of the proposed licence (s 66 Mining Act) constitute major disturbance of the ground “even from the viewpoint of the general community”.
Damage to any ground associated with Milyura Dreaming, said to pass through the subject land, would be considered “a serious and major matter” for the native title party and any Aboriginal groups associated with that Dreaming.
The native title party’s evidence is contained in an affidavit of Elizabeth Sambo sworn in Kalgoorlie on 8 September 2004:
‘I, ELIZABETH SAMBO, of PO Box 21, Coolgardie, in the State of Western Australia, Native Title Applicant, being duly sworn make oath and say as follows:
1.That I am an Applicant for a determination of native title in relation to the area of land and waters affected by the application of the Grantee Party for Exploration Licence E26/107, whose centroid has coordinates of 121.57, 30 and 31,10, 00 and Exploration Licence E26/108, whose centroid has coordinates 121.54 30 and 31.08,29.
2.Aboriginal traditional religion, whose practices and doctrines I and my family follow is a land-based religion, that is, its shrines, holy places and places associated with our ancestors are part of the land and are often not marked or obvious to people not of our religion or of our beliefs.
3.Aboriginal religion distinguishes between the roles, duties and obligations of men and women. That is not to say that one is inferior to the other or less important than the other. Both men and women have a role in the Aboriginal religion and in carrying on the traditions of the creation time which is called in English the Dreaming. Both men and women share certain holy places on the land, but both men and women also have their own special holy places.
4.The senior women of each Aboriginal group have the duty of maintaining the spirituality of the land and of seeing that this spirituality is passed on undamaged to the next generation. Along with my mother Mrs Linda Champion, and my aunt, Mrs Dorothy Dimer, I am a senior woman of the Central West people.
5.Damage to holy places on the land will take from, or sometimes destroy, the spirituality that is in the land. If that happens then the senior women of the group in whose land the damage has occurred have failed in their duty to maintain the spirituality of the land and to pass that on undamaged to the next generation.
6.Some of the shrines and holy places on the land are specific to the group in whose lands they are located. that is, they refer only to ancestral or Dreaming persons or spirits who are associated only with that particular area. If damage occurs to these holy places which the senior women of the group had it in their power to prevent, then we believe that misfortune, illness and unexpected death will occur within the group. The blame for these occurrences will rest with those people who could and should have prevented the damage in the first place.
7.Some of the shrines and holy places on the land deal with ancestral or Dreaming spirits or persons who travelled extensively throughout the country and crossed and re-crossed the traditional lands of many different Aboriginal groups. It is a fact of Aboriginal religion that the people in whose traditional lands shrines or holy places associated with ancestral or Dreaming spirits or persons of this nature are located are held responsible by all other peoples associated with that particular Dreaming throughout the country for the protection from damage of those shrines and holy places. This is a duty that the people from each specific tract of traditional country cannot avoid. If damage occurs to those holy places which the senior women of the particular group in question had it in their power to prevent, then we believe that misfortune, illness and unexpected death will occur within the community of all persons associated with that Dreaming. The blame for these occurrences will rest with those people who could and should have prevented he damage in the first place. Traditional punishments will probably be levelled against them.
8.The Government of Western Australia has enacted the Aboriginal Heritage Act in order to, amongst other things, assist the traditional Aboriginal people of Western Australia in fulfilling their obligations to protect shrines and holy places on their land and also on the lands of their neighbours, should a threat be posed against shrines and holy places associated with a Dreaming that passes through the traditional lands of several different groups. However, the Department of Indigenous Affairs and Aboriginal Cultural Materials Committee that administer the legislation can only act to protect place that they know about. A great many shrines and holy places, probably the majority of them in Western Australia, have never been registered for protection with that Department or Committee because nobody has ever has cause to carry out that registration, either because the relevant Aboriginal people were never asked about a particular area within their traditional lands, or because there was no reason to register such places as there was no threat to them. Therefore, the fact that there are no listings in the Register of Aboriginal Sites for sites in a particular area is not indicative of the presence or absence of such places. Rather it is indicative of the fact that nobody has previously inspected that particular area for such sites. That is, it is indicative of a failing or shortcoming in the database rather than of a level of certainty that such sites do not exist in any given area.
9.Passing through the traditional lands of the Central West people is a Dreaming which we call Milyura. It starts near Esperance in the country of the Nyungar people, passes through our country, crosses into the lands now covered by the Central East people and then continues out into the Greater Victoria Desert, where it is known as Kungkarangkara Dreaming. This Dreaming tells of the ancestral Seven Sisters who were pursued across the country by Nyiru, an evil man who was intent on having unlawful sexual relations with the girls.
10.People from traditional Aboriginal communities throughout the Great Victoria Desert consider me to be a senior women holder of this Dreaming where it passes through the traditional country of the Central West people. In this capacity, I meet regularly with senior women from those communities and visit them often. In that capacity also, I joined with a group of senior women from those communities to carry women’s traditional business to Sydney and to dance there at the opening of the Sydney Olympic Games, in order to welcome the athletes to Australia in the traditional fashion.
11.People from traditional Aboriginal communities throughout the Great Victorian Desert also hold me, and the other senior women from the Central West group, responsible for the protection from damage of shrines and holy places associated with Milyura or Kungkarangkara Dreaming where it passes through our traditional lands. If any of these shrines or holy places is damaged, then we will be held responsible for the damage and for the misfortune, illness and perhaps death that will follow.
12.Milyura Dreaming passes north from Widgiemooltha Hill and rests at a most important site some four kilometres south of the Goldfields Highway/Coolgardie-Esperance Highway junction. As an example of how unreliable a guide the Register of Aboriginal Sites is to the presence or absence of such sites in any area, it is a fact that this site is listed in the Register as being to the northeast of the road junction in question, some six kilometres from its actual location. At this most important site is a series of water-sources that were placed there by the Seven Girls during the creative time, stone arrangements and a men’s (Nyiru) site. With the other senior members of the Central West people. I have arranged for the protection of this holy place. That protection was arranged by carrying out formal Aboriginal heritage surveys of the area for Harmony Mining, Breakaway Resources, Anglo Australian Resources and Australian Nickel Mines, all of whose leases abut or cover the site in question. The site is now fully and accurately mapped, so that the Central West people can be secure in the knowledge that it will not be damaged and the four Mining Companies can continue their operations in its vicinity.
13.Milyura Dreaming passes from this protected site across the northern part of Lake Lefroy or Mount Monger. My late uncle, Mr Phil Donaldson, was the custodian of men’s traditional religion at Mount Monger and worked there for many years. There are women’s sites associated with springs, water-sources and claypans around the northern shores of the Lake and also inland along the creeks that feed into the Lake. E26/107 and E26/108 are well over twenty kilometres long north-south and nearly ten kilometres across at their widest point. They are located at the northern end of Lake Lefroy, where the Milyura Dreaming crosses to Mount Monger. None of our elders is a skilled mapreader. Also, with only poor quality maps supplied by the National Native Title Tribunal and department of Industry and Resources, it is simply impossible to relate my traditional knowledge of the country there to the pieces of paper I have been given.
14.The Central West people, in recognition of the traditional importance of the Mount Monger and Lake Lefroy area to the Milyura Dreaming, requested that a full Aboriginal heritage survey of the leases in question should be carried out in order that any sites identified can be protected in the same way as the site discussed above has been protected. The Company can then carry on its exploration and mining. To that end, the Central West people provided the Applicant with a standard Central West Heritage Agreement. The Central West people indicated that this could be modified where amendments are agreed upon.
15.The Applicant has nominated the Goldfields Land Council Standard Heritage Agreement, which is used by clients of the GLC. The Central West people are not represented by the GLC, and the agreement nominated by the GLSC has no standing with the Central West people.
16.Any unrecorded Aboriginal sites in E26/107 and E26/108 are in danger of destruction by exploration and mining activities. If any shrines or holy places associated with Milyura Dreaming are destroyed, then the blame for that destruction will be placed against the senior women of the Central West people by all other persons associated with that Dreaming. The senior women of the Central West people will be held to have failed in their traditional duty of nurturing the spirituality of the land and in passing that land on to the next generation with its spirituality intact. To avoid this happening, it is necessary for the leases in question to be visited by the Central West people in the company of a qualified anthropologist acceptable to the Aboriginal people, in order to demarcate and delineate the sites in question. The work should be carried out under prescribed conditions that are based upon the Central West people’s Aboriginal heritage protocol, are clearly understood by all parties, and can be utilised by all parties for all future activities of the Company in the traditional lands of the Central West people.
17.In brief, therefore, the traditional religious life of the Central West people will be put under threat by the grant of E26/107 and E26/108 without a full Aboriginal heritage survey being first of all carried out over the leases. In addition, the community life of the Central West people will be adversely effected should damage to shrines or holy places associated with Milyura Dreaming occur, as people throughout the Great Victoria Desert will hold them responsible for the ills that will occur following such damage. It is therefore the duty of the Central West people to pursue to the end all avenues open to them to ensure that such damage does not occur.
18.In addition since my uncle lived and worked at Mount Monger, and also looked after traditional religious matters there, it has been the custom of the Central West people to visit Mount Monger to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools there. I contend that the unrestricted grant of the exploration licences in question will interfere directly with these activities, as there will be areas of the leases that will be closed to access by my people.
Ms Sambo is one of eight persons named as part of the applicant and registered native title claimant for the native title claim of the Central West Goldfields People, and currently represents the group in future act matters. Her evidence is uncontested and I accept it including her statement that she is senior women of the Central West people, with attendant responsibilities towards the guardianship of the land with which the native title party is associated.
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show that there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party. Evidence in this regard is contained in para 18 of Ms Sambo’s affidavit. It is general evidence that the Mount Monger Station area is used, and has been used since the late Mr Phil Donaldson lived and worked on the station, by members of the native title party for hunting, gathering and manufacture of traditional tools. The evidence is that it is has been the custom of the Central West people to engage in the activities but no evidence has been provided as to the current frequency of these hunting and gathering visits, the details of them, or the number of claim group members involved in the activities.
I further note that Mount Monger pastoral lease encompasses an area of some 1,720.35845 square kilometres much of it to the south and east of the proposed licence, with 24% of the pastoral lease area overlapping the native title party’s claim. Presumably the native title party’s activities are not restricted entirely to the area of the proposed licence or indeed the area of their native title claim. Further, the grant of the proposed licence does not confer exclusive rights of access to the grantee party. Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur. Any restriction would also be temporary.
The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith (Federal Court) at [26]-[27]; Walley v Western Australia at [12]). As noted previously the area of land the subject of the proposed licence has a long history of past, present and future mining activities, and the concerns of claimant groups in the area are evidenced by objections lodged in relation to those acts. However, related objection applications have in all cases been resolved either by withdrawal of the objection, dismissal for failure to proceed with the objection application, or by a determination that the expedited procedure is attracted. While I accept that exploration activities can be detrimental to Aboriginal community activities, there is nothing before me evidencing a prior detrimental affect on community and social activities in this area.
With respect to the contention that the spirituality of the land will be destroyed by exploration activities, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land and that failure to do so properly will lead to fear of misfortune, illness or death. The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’
In this matter there is not only evidence that the claimants believe that misfortune, illness or unexpected death will occur if there is damage to special places for which they have responsibility but also that traditional punishment, ‘will probably be levelled against them’. The evidence, therefore, goes beyond what was considered in Walley. I can accept that if it could be shown that traditional punishments were in fact administered in the Goldfields area in circumstances where Aboriginal people from that area or elsewhere felt that persons with responsibility for country were not properly attending to their obligations then this could amount to direct interference with the community and social activities of the native title party claimant group resulting from the grant of the exploration licence. The difficulty with this submission is that exploration activity has occurred over many years in the Goldfields area but there is no evidence that traditional punishment have in fact been administered in the circumstances explained by Ms Sambo. Ms Sambo makes a general assertion that traditional punishment will probably be imposed but gives no specific detail of whether this has in fact occurred in similar situations in the Goldfields in the past. The other difficulty is that Ms Sambo says that a proper heritage survey (in her view one carried out according to a CWAHA) will ensure that her responsibility to look after the country is met. My finding in relation to s 237(b) (see below) is that sites of particular significance are not likely to be interfered with because of the regulatory regime to protect sites. This may involve the conduct of a heritage survey as part of the normal procedures but if it did not the native title party can insist on a heritage survey carried out in accordance with the RSHA because of the proposed condition which will be imposed on the grant. While there are differences between the RSHA and CWAHA, I am satisfied that both involve the conduct of surveys that will identify Aboriginal heritage including sites of particular significance to the native title party.
Taking all these factors into account I find that the exploration activity will not 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 here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary - Cheinmora v Striker (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. The fact that no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean that there may not be such sites over the area of the proposed licence. 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 regulatory regime based on the Aboriginal Heritage Act 1972 (WA) has been described on numerous occasions by the Tribunal (I adopt the findings in Walley at [50]-[51]). The Federal Court (Little at [77]) found the protective effect of the Aboriginal Heritage Act 1972 (WA) such as to make interference with sites of particular significance unlikely.
In addition to the RSHA described above the Government party has prepared an updated version of its ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence. The original Guidelines (1995) were considered by the Tribunal in Re Waljen People (Roberta Thomas On Behalf Of The Waljen People/Western Australia/Sons Of Gwalia Ltd; Abador Gold NL; Acacia Resources, NNTT WO95/17, [1995] NNTTA 28 (24 November 1995), Hon Paul Seaman QC) [1996] 1 AILR 227. The original Guidelines contained information about the Aboriginal Heritage Act 1972 (WA) and advise that an offence would be committed if a grantee party interfered with an Aboriginal site without authorisation. They pointed to the need for consultation with Aboriginal interests and provided details of how this may be done. They referred to the various site survey methods which are utilised to ensure that sites are not interfered with. The Department of Aboriginal Affairs (now Department of Indigenous Affairs) provided details of Aboriginal sites on the register kept by it to a grantee party inquiring about them and informs them that the Aboriginal Heritage Act 1972 (WA) protects all sites whether on the Register or not and recommends the engagement of qualified consultants to conduct ethnographic and archaeological surveys which should ensure that all Aboriginal groups are consulted so that all sites are avoided or identified. Based on these procedures Deputy President Seaman found that it was likely that the grantee party would consult with the native title party thus making it unlikely that there would be interference with any sites of particular significance. The Tribunal has also found that because of the notice of these procedures a grantee party may not be able to rely on the defence in s 62 of the Aboriginal Heritage Act 1972 (WA) that they did not know or could not reasonably be expected to have known of the existence of an Aboriginal site (Walley at [50]).
The revised Guidelines are similar to those of 1995 and continue to draw attention to the limitations of the s 62 defence where no attempt has been made by a person charged with an offence under the Act of interfering with a site to obtain information about relevant sites. In addition the Government’s policy on the use of RSHAs is spelled out and the importance of consultation reaffirmed with details of how the consultation should occur under the RSHA in the different NTRB areas where claimants have agreed to the RSHA. The Guidelines refer to substantial increases in penalties for breaches of the Aboriginal Heritage Act 1972 (WA) introduced in 2003 (s 57) to:
in the case of an individual for a first offence, $20,000 and imprisonment for 9 months and for a second or subsequent offence, $40,000 and imprisonment for 2 years; and
in the case of a body corporate, for a first offence $50,000 and for a second or subsequent offence $100,000.
In my view the combined effect of the revised Guidelines and increase in penalties under the Aboriginal Heritage Act 1972 (WA) is to enhance the effectiveness of the Government party’s regulatory regime for the protection of Aboriginal sites.
As in the past the Tribunal will continue, in particular cases, to have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The evidence of Ms Sambo refers to the Milyura Dreaming. The Dreaming rests at a site some kilometres south of the junction of the Great Eastern Highway and the Coolgardie-Esperance Highway (note the Tribunal has clarified with Ms Sambo that the reference in her affidavit to the Goldfields Highway should be the Great Eastern Highway). Ms Sambo describes an important site situated there which I can accept as a site of particular significance. This area is over 60 kilometres to the west of the proposed licence area and is not directly relevant in this case. It was accurately mapped by the native title party through a heritage survey. The evidence about other sites is less clear. The Milyura Dreaming passes across the northern part of Lake Lefroy at Mt Monger. There are women’s sites associated with springs, water sources and clay pans along the creek that feed into the lake. The Tribunal provided a more detailed topographical map to the parties to overcome the concerns of Ms Sambo about the quality of maps. With this additional aide and based on the description provided by Ms Sambo I consider that the Milyura Dreaming probably passes through or close to the northern part of the proposed licence. Although it is difficult to be certain, some of the sites referred to by Ms Sambo are probably located on the proposed licence area. While little detail of the women’s sites is given I am prepared to infer, given the undoubted significance of the Milyura Dreaming, that the women’s sites referred to are associated with it and likely to be sites of particular significance.
I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with the area or sites. In my view unless consultation with the native title party by the grantee party occurs there is a possibility that damage to a site (albeit inadvertent) could occur. I am satisfied that the regulatory regime in place will ensure that this consultation happens. Ms Sambo says that a full Aboriginal heritage survey is necessary after which the grantee party would be free to carry on exploration. The grantee party has expressed its willingness to conduct a heritage survey (albeit of the kind described in the RSHA) and is mindful of its responsibilities under the Aboriginal Heritage Act 1972 (WA) to protect Aboriginal Heritage. I accept that the grantee party will consult with the native title party about these matters if the tenement is granted. While there are some differences between the two agreements, having perused both of them, I can see no reason to suggest that Aboriginal heritage will be protected more effectively by one than the other. If after consultation agreement cannot be reached the native title party under the proposed condition can insist on a survey pursuant to the RSHA. Given the nature of the sites which probably exist on the tenement and the Government party’s regulatory regime which apply to them I can see no real risk that they will be interfered with.
Major disturbance (s 237(c))
Section 237(c) of the act requires a value judgement on whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve (in the sense that there is a real chance or risk of) major disturbance, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the general community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
The concerns of the native title party are set out in Ms Sambo’s affidavit and have largely been dealt with when considering ss 237(a) and 237(b). Apart from the Milyura Dreaming and areas or sites of particular significance there is no direct evidence on the issue of major disturbance to land. The native title party again contends that a site survey is necessary to prevent major disturbance. For the reasons already given on s 237(b) I do not consider disturbance to land which amounts to interference with an Aboriginal site to be likely.
The native title party then says that the activities permitted by an exploration licence (s 66 of the Mining Act) including drilling and the extraction of up to 1,000 tonnes of material, inevitably involves major disturbance to land. This generalised position has never been accepted by the Tribunal which has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. In most cases (see for example Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), Mr John Sosso at [48]-[62] and Walley at [59]-[63]) the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so. However, this is not an inevitable finding in all cases and there have been exceptions (see Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54; Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462; Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke).
In finding that there is not likely to be major disturbance to land in this case I have had regard to the following factors.
There are no Aboriginal communities in the vicinity.
Most of the proposed licence is over pastoral lease where ground disturbance has already and will continue to be carried out.
There is extensive history of mining and exploration in the vicinity.
The presumption of regularity in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities.
The conditions imposed on the exploration licence dealing with ground disturbing activities including requirement for rehabilitation of the land (esp. standard conditions 1-4).
With the possible exception of the Water Catchment Area Reserve, there is no detailed evidence of any sensitive, topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to the land.
With respect to the Water Catchment Area Reserve (only a small part of the proposed licence area) the conditions impose a strict regulatory regime.
The native title party contends that a permissible quantity of blasting or bulldozing, such as “ten metres by ten metres” for the construction of an exploration camp where that blasting were to occur on a granite outcrop associated with Milyura Dreaming, would constitute major disturbance as defined by the Aboriginal community as a whole. While I accept that this would be the case and that it would probably constitute a major disturbance even by reference to the standards of the broader community there is no evidence that such activity is likely to result from the proposed exploration. In any event such a place is likely to be an Aboriginal site and protected in the manner described above.
Determination
The determination of the Tribunal is that the grant of exploration licence E26/108 to Vosperton Resources Pty Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
1 February 2005
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