Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd

[2013] NNTTA 86

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Cosmos on behalf of Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd, [2013] NNTTA 86 (12 July 2013)

Application No:               WO2012/1042

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Kevin Cosmos and Others on behalf of Yaburara & Mardudhunera (WC1996/089) (native title party)

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The State of Western Australia (Government party)

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Croydon Gold Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  12 July 2013

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA), ss 61(2), 66

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) 2004 (WA)

Cases:

Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)

Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)

Cheinmora and Others v Heron Resources Ltd and Another  (2005) 196 FLR 250 [2005] NNTTA 99, (‘Cheinmora’)

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

Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)

Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, (‘Parker 1’)

Parker v Western Australia and Others (2008) 167 FCR 340, (‘Parker 2’)

Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas’)

Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)

Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)

Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)

Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Geotech’)

Representatives of the     Ms Aimee Hackett, Corser & Corser

native title party:

Representatives of the     Mr Jeff O’Halloran, State Solicitor’s Office

Government party:         Ms Bethany Conway, Department of Mines and Petroleum

Representatives of the     Mr Greg Abbott, M&M Walter Consulting
grantee party:                 

REASONS FOR DETERMINATION

1. On 16 May 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2361 (‘the proposed licence’) to Croydon Gold Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. According to the notice:

   • the proposed licence is approximately 191.59 square kilometres in size;

   • the proposed licence is located 58 kilometres north of Pannawonica, in the Shire of         Roebourne;

   • the native title party had until 17 September 2012 to lodge an objection application against the expedited procedure statement.

3. The native title claim of the Yaburara and Mardudhunera People (WC1996/089 - registered from 1 August 1996) wholly overlaps the proposed licence, according to the s 29 notice. On 14 September 2012, an expedited procedure objection application was lodged with the Tribunal by Kevin Cosmos on behalf of the Yaburara and Mardudhunera native title claim group (‘the native title party’) in relation to E08/2361.

1. The proposed licence also partly overlaps the native title claim of the Kuruma Marthudunera People (WC1999/012 – registered from 24 June 1999). The expedited procedure objection application in relation to the proposed tenement lodged by Mark Lockyer and Others on behalf of Kuruma Marthudunera (WO2012/1021) was withdrawn on the basis of a change in the Kuruma Marthudunera claim boundaries following notification, resulting in no overlap with E08/2361.

2. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

3. On 19 December 2012, I was appointed by then President Graeme Neate as the Member for the purpose of conducting the inquiry.

4. Parties sought instructions and negotiated in relation to a draft heritage agreement for several months, and directions were extended on a number of occasions to enable negotiations to continue.

5. On 20 March 2013, the grantee party requested that the matter proceed to inquiry.

6. Directions were issued by the Tribunal and in compliance with those:

   ·     Department of Mines and Petroleum provided documents to the Tribunal and other parties on behalf of the Government party on 12 April 2013;

   ·     the native title party provided a statement of contentions on 22 April 2013;

   ·     the grantee party provided a statement of contentions on 29 April 2013;

   ·     the State Solicitor’s Office (SSO) provided the Government party’s statement of contentions in response to the native title party contentions on 6 May 2013. On 7 May 2013, the State Solicitor’s Office requested permission from the Tribunal to file an amended statement of contentions relating to a deletion of paragraph 22 of its contentions. Permission was granted and these were filed in accordance with that direction on 8 May 2013.

7. The Tribunal provided parties with a map of the proposed tenement on 4 June 2013 to be used for the purposes of this inquiry, and no objections were received in response.

8. On 3 July 2013, the Tribunal contacted parties, noting that two different sets of conditions and endorsements had been proposed to be applied to the grant of this licence, one dated 12 April 2013 and one dated 29 April 2013.  The grantee party had relied on the 12 April set, and it was not clear which set the other parties had relied on. By email dated 3 July 2013, the Government party confirmed that it seeks to rely on the draft conditions and endorsements extract dated 29 April 2013 submitted with the SSO contentions on 8 May 2013. On 3 July, I directed that the grantee party and native title party were at liberty to submit contentions addressing only the draft conditions and endorsements extract dated 29 April 2013, by 10 July 2013. In compliance with that direction, the grantee party submitted amended contentions dated 5 July 2013.

9. All parties agreed the matter could be determined ‘on the papers’. As such, the inquiry is proceeding to be determined ‘on the papers’ as per s 151 of the Act, and I am satisfied that it can be adequately determined in this way.

Legal principles

1. Section 237 of the Act provides:

   A future act is an act attracting the expedited procedure if:

   (a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

2. In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].

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

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

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

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

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

5. With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2).).

6. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]). 

Evidence in relation to the proposed act

1. The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and a tengraph quick appraisal.

2. Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:

   ·   Pastoral Lease 3114/1027 (Mardie) at 88.8 per cent;

   ·   Vacant Crown Land at 9.1 per cent; and

   ·   Road reserve at less than 0.1 per cent.

3. Government party documentation establishes: five previously granted exploration licences overlapping the claim area variously between 19.5 per cent and 28.2 per cent between 1993 and 1999; ten mineral claims overlapping variously between less than 0.1 per cent and 0.6 per cent between 1972 and 1974; and two temporary reserves overlapping 98.1 per cent and less than 0.1 per cent between 1966 and 1977, and 1967 and 1969 respectively. All previously granted licences are now surrendered or cancelled.

4. The quick appraisal document shows that services affected are: four major roads (including North West Coastal Highway); six tracks; fence line; Shepherd Well; a below-ground pipeline; and Tullawar Pool.  The quick appraisal also indicates the following tenure in relation to this proposed licence: a State Onshore Pipeline licence (PL40) and a stock route (De Grey Mullewa Stock Route – CR9701 – Yarral).

5. The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are nine DIA recorded sites within the proposed licence as follows:

   • Site ID 715/ site no. P07373, Wuntarri Muka (ceremonial, artefacts/ scatter);
   • Site ID 8070/ site no. P04618, Borrow Pit 9 (artefacts/ scatter);
   • Site ID 8071/ site no. PO4619, Borrow Pit 10 (artefacts/ scatter);
   • Site ID 10530/ site P01636, Du Boulay Creek Quarry (quarry);
   • Site ID 10531/ site P01637, Gas Pipeline 34 (engraving);
   • Site ID 11561/ site P00586, Gala Ngalarnu (mythological);
   • Site ID 18010/ PC-20, Pipeline Corridor 20 (artefacts/ scatter);
   • Site ID 18011/ PC-21, Pipeline Corridor 21 (artefacts/ scatter);
   • Site ID 18099, Eramurra Creek 1 (archaeological deposit).

6. Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed licence.

7. The draft tenement Endorsement and Conditions Extract for the proposed licence provided by DMP dated 29 April 2013 indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]), in addition to the following:

   5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone of 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, 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 details of the grant or transfer.

   7.No interference with Geodetic Survey Stations Yarraloola 3, 4, 4T, YLA 184, 185, 190, 192, 199 and 200.

   8.No interference with the optic fibre cable or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.

   9.No activities being carried out within the proposed railway corridor (designated FNA 9016) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.

   10.The Licensee’s attention is drawn to the existence of a licence for revised API rail corridor and access roads granted pursuant to section 91 of the Land Administration Act 1997 and which is shown designated as Mt Nicholson FNA 9017 in TENGRAPH.

   11.No exploration activities being carried out on De Grey Mullewa Stock Route Reserve 9701 which restrict the use of the reserve.

   12.No excavation, excepting shafts, approaching closer to the North West Coastal Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the North West Coastal Highway or Highway verge being confined to below a depth of 30 metres from the natural surface.

   13.No mining within 25 metres of either side of the Dampier to Perth Gas/Petroleum pipeline as shown in TENGRAPH.

   14.No surface excavation approaching closer to the boundary of the safety zone established by condition 13 hereof than a distance equal to three times the depth of the excavation without the prior written approval of the State Mining Engineer DMP.

   15.No interference with the drainage pattern, and no parking, storage or movement of equipment or vehicles used in the course of mining within the Safety Zone established by Condition 13 hereof without the prior approval of the operators of the Gas/Petroleum pipeline.

   16.The Licensee shall not excavate, drill, install, erect, deposit or permit to be excavated, drilled, installed, erected, or deposited within the Safety Zone established in Condition13 hereof, any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever without the prior written consent of the State Mining Engineers DMP.

   17.No explosives being used or stored within one hundred and fifty (150) metres of the Gas/Petroleum pipeline without the prior written consent of the State Mining Engineer (DMP).

   18.Mining on the Safety Zone established on Condition 13 hereof being confined to below a depth of 50 metres from the natural surface unless otherwise approved by the State Mining Engineer (DMP).

   19.The rights of ingress to and egress from the pipeline easement established in Condition 13 hereof being at all times preserves for employees, contractors and agents of the operators of the Gas/Petroleum pipeline.

   20.Such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 for the purpose of protecting the Gas/Petroleum pipeline.

8. The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:

   1.The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder;

   2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained;

   3.The Licensee’s attention is drawn to the existence of a licence for revised API rail corridor and access roads granted pursuant to section 91 of the Land Administration Act 1997 and which is shown designated as Mt Nicholson FNA 9017 in TENGRAPH;

   4.The grant of this Licence does not include land the subject of General Purpose Lease 08/55;

   In respect of Water Resources Management Areas (WRMA) the following endorsements apply:

   5.The Licensee attention is drawn to provisions of the:

   • Waterways Conservation Act, 1976
   • Rights in Water and Irrigation Act, 1914
   • Metropolitan Water Supply, Sewerage and Drainage Act, 1909
   • Country Areas Water Supply Act, 1947
   • Water Agencies (Powers) Act 1984
   • Water Resources Legislation Amendment Act 2007

   6.The rights of ingress and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes;

   7.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing;

   In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

   8.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

   In respect to Waterways the following endorsement applies:

   9.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   • 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
   • 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
   In respect to Proclaimed Surface Water and Irrigation District Areas (Pilbara) the following endorsements apply:

   10.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by DoW.

   11.All activities to be undertaken with minimal disturbance to riparian vegetation.

   12.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds and banks issued by the DoW.

   13.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

   In respect to Proclaimed Ground Water Areas (Pilbara) the following endorsement applies:

   14.The abstraction of groundwater is prohibited unless a current licence to construct/ alter a well and a licence to take groundwater has been issued by the DoW.

1. The Government party states in its contentions (at 20) that it will also place the following condition on the grant of the proposed tenement (‘proposed RSHA condition’):

   In respect of the area covered by the licence the Licensee, if so requested in writing by the Yaburara & Mardudhunera (Combined) People, the applicants in Federal Court application no. WAD 127 of 1998 (WC96/98), such request being sent by pre-paid post to reach the Licensee’s address, c/- M & M Walter Consulting, PO Box 8197, Subiaco East, WA 6008, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Yaburara & Mardudhunera (Combined) People the Regional Standard Heritage Agreement (RSHA) endorsed by peak industry groups and the Yamatji Marlpa Aboriginal Corporation.

Evidence provided by the grantee party

1. The grantee party provided a statement of contentions dated 29 April 2013 in which it indicates that it supports the SSO contentions. The grantee party’s amended contentions dated 5 July 2013 are the same as its previous contentions, save for an amended paragraph 2.2 (which refers to the more detailed endorsements, as contained in the DMP draft conditions dated 29 April 2013).

2. In regard to s 237(a), the grantee party states (at 1.1) that it will not exclude any community activities upon the proposed tenement unless, during a particular exploration activity, it is considered temporarily unsafe for the conduct of community activities. Should it be unsafe for the conduct of community activities, the grantee party states it would consult with the community to relieve apprehensions (at 1.2).

3. In regard to s 237(b), the grantee party notes (at 2.1-2.2) there are nine registered Aboriginal sites which are predominantly along the natural gas pipeline and North West Coastal Highway reserves, and that proposed conditions include that there is not any mining activity within twenty-five metres either side of the Dampier to Perth gas/ petroleum pipeline (in addition to several other proposed conditions relating to the pipeline). The grantee party states that it will comply with the AHA, is aware of the penalties that can be imposed, and will report any Aboriginal sites identified as required under that Act. It notes that it has never been prosecuted in relation to breaches of the AHA.

4. As to s 237(c), the grantee party contends that the exploration activity will not constitute 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 (at 3.1). It further states that it will restore land immediately after carrying out its exploration programme on the proposed tenement, and that it will be restored as close as possible to the condition prior to exploration being undertaken by the grantee party or its agents.

Evidence provided by the native title party

1. The native title party’s contentions relating to s 237(a) are contained in paragraphs 6 to 7 of their contentions. They state (at 6) that members of the Yaburara and Mardudhunera claimant group engage in traditional activities such as camping, hunting and fishing within the proposed tenement. They also note (at 7) that one of the rights the grantee party is afforded under s 66 of the Mining Act is the right to enter the land with such agents, employees, vehicles, machinery and equipment for the purpose of exploring for minerals in, or under, the land, and contends that these activities will inhibit the native title party’s ability to camp within the proposed tenement. They argue it is highly likely that the presence of such vehicles and machinery will scare off any wild animals such as kangaroos, goanna and wild turkey from the area, which affects the native title party’s ability to hunt in the proposed tenement area.

2. The native title party’s contentions relating to s 237(b) of the Act are contained in paragraphs 8 to 10 of their contentions. The native title party states (at 8) that there are already nine sites registered with the DIA, one of which includes a ceremonial site. They submit (at 9) that there are likely to be more significant sites within the proposed tenement, including a scattering of artifacts as a result of the historical occupation by the Yaburara and Mardudhunera people’s ancestors, and their observances of traditional ceremonies within the proposed tenement. They argue (at 10) that even though the grantee party is now on notice that significant sites exist within the proposed licence, the exact location of these sites is unknown to them, and, therefore, the AHA will fail to protect these sites unless there is close liaison between the native title party and the grantee party through negotiation and agreement.

3. The native title party’s contentions relating to s 237(c) of the Act are contained in paragraphs 11-16 of their contentions. They submit (at 11) that if the grantee party performs exploration activities in the proposed licence without the land and waters being surveyed, and without monitors being present when the area is being disturbed, there is a risk of damage to the land and to items left behind by the native title party’s ancestors. They note (at 12) that the grantee party has not provided any evidence as to their exploration intentions. The native title party state (at 14) that the disturbance in this case has such consequences for people in the local area as to properly be called a major disturbance, ‘notwithstanding that it would be of no consequence to non-Aboriginals who live far away’. They state (at 15) that there is a strong law requiring the native title party to care for and protect places where their ancestors have lived, and particularly where they camped, carried out ceremonies or were buried, as the spirits of their ancestors live in these places. Furthermore, they state (at 16) that if these places are disturbed or damaged, then in the native title party’s belief system they can expect that the disturbance of their ancestors’ spirits will lead to misfortune, ill health and possibly death within their people’s society. As a result, when exploration activities are to occur without arrangements being in place for the identification and protection of sites and artefacts, the native title party states they will ‘experience strong fear of the adverse consequences likely to befall them if and when their ancestors’ spirits are disturbed by damage or interference with the places that they inhabit’.

Considering the evidence

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).

2. The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose findings I adopt) outlined that:

   The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.

3. The Government party notes (at 22) that the grantee party has indicated its willingness to enter into an RSHA, demonstrated by sending the offer by email to the native title party’s representatives on 5 April 2012. It notes (at 23) that the RSHA provides, amongst other things: that the grantee party must notify the native title party about proposed on-ground works (whether ground-disturbing or not); provide detailed information about those works before commencing them; consult with the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works; carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances; and consult the native title party before applying for any consent under section 18 of the AHA. The Government party’s response contends (at 41) that the grantee party’s willingness to enter into an agreement with the native title party is a relevant factor in determining that there is not likely to be interference with the social and community activities of the native title holders (see Butcher Cherel).

4. The native title party’s submission relating to s 237(a) of the Act are outlined at [33] above, which relate to its camping, hunting and fishing activities on the proposed tenement.

5. In response to the native title party’s evidence, the Government party states (at 43) that there is no evidence that members of the native title party carry out community or social activities such as camping, fishing and hunting within the proposed licence, and note that they provide no details as to how often and where these activities occur, what is involved, nor the number and identity of the participants. I also note that no affidavit evidence has been produced by the native title party in support of their contentions.

6. To the extent that the Tribunal may accept that the evidence demonstrates members of the native title party carry out community and social activities, the Government party submits that there is not likely to be direct interference because:

• The grantee party has stated that most of the proposed exploration activities will be low-impact, and any ground-disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local Aboriginal concerns (at 44(a));

• The grantee party has indicated its willingness to enter into an RSHA type agreement with the native title party (at 44(b));

• The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and it is likely these activities have affected, or continue to affect, the extent to which community and social activities can be carried out in the relevant area (at 44(c));

• The proposed tenement area is almost entirely covered by a pastoral lease, and this interest is likely to have extinguished at least any native title rights to control use of and access to the relevant land  (at 40(d));

• There are no Aboriginal communities on the proposed tenement (at 40(e));

• The low-scale exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon camping, hunting and fishing in the proposed tenement area, particularly given the intentions of the grantee party to conduct those activities with cultural sensitivity and to maintain good relations with the native title party (at 40(f));

• Hunting, fishing and mineral exploration activity are, by their nature, inherently capable of coexistence and the Tribunal has found this to be the case on numerous occasions (at 40(g)); and

• It is difficult to envisage how mineral exploration activity could cause substantive interference to the ability of the native title party to access the area of the proposed tenement (at 40(h)).

1. In relation to these points, I accept past and present pastoral, exploration and mining activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party.  While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous activities will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).

2. The total area of the Yaburara and Marthudunera People claim is approximately 9554.214 square kilometres and the proposed licence is approximately 191.59 square kilometres.  The size of the area of the proposed licence in the context of the much larger native title claim, makes it less likely that exploration activity will interfere with the community or social activities described by the native title party.

3. As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investment Corporation, at [14])).  The Government party response (at 39) submits that the likelihood of interference directly with the carrying on of community or social activities will only arise if there is evidence of the carrying on of the activities. In the present matter, I agree with the Government party that there is insufficient evidence provided by the native title party about the frequency with which the relevant activities are carried out.  Based on the available evidence, I cannot say that it appears that the activities which the grantee party would be permitted to carry out under the proposed licence will directly interfere with the community and social activities of the native title party.

4. In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are nine registered sites within the proposed licence area. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.

2. The native title party contentions directed at s 237(b) of the Act are outlined at [34] above. As noted by the Government party (at 58-61), these contentions provide no content as to the nature of any ‘particular significance’ of the nine registered sites, or of any other sites. In addition, I note the Yaburara and Mardudhunera People objection application refers, as one of the elements of their objection, that, among other things, ‘...the Guidelines Issued to Persons Obtaining Miscellaneous Licences is not an appropriate level of protection sufficient to protect the land concerned or to avoid outcomes offending the traditions and beliefs held by the claimant people’ (at 7f). It is not clear precisely which document the native title party are referring to, as no date or publishing details are provided. In addition, this matter relates to the proposed grant of an exploration licence, not a miscellaneous licence, so it is difficult to see how this point adds weight to the objection of the native title party.

3. The Government party response indicates (at 62) it does not accept the native title party’s contention that mere presence in an area may cause direct interference with that area; it states whether or not something directly interferes with an area or site is a matter for evidence establishing that. The Government party response also states (at 63) it does not accept the native title party’s contention that a lack of consultation of native title holders before entering land or doing an activity amounts to interference for the purposes of s 237(b) of the Act.

4. The Government party response states that, in the event of there being any areas or sites of significance within the proposed tenement, interference with those areas is not likely for the following reasons:

• To the extent that the sites referred to generally in the native title party’s contentions  are ‘sites of particular significance’, the grantee party is now aware of the existence of these sites and of its legal obligation in respect of these sites (at 64(a));

• The grantee party has stated that most of the proposed exploration activities will be low-impact. Any ground disturbing activities (such as exploratory drilling) are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns (at 64(b));

• The concerns expressed in the native title party’s contentions about damage to the land and to the items left behind by the native title party’s ancestors reflect an overestimation of the activities of the grantee party, and there is no evidence that the grantee party is going to conduct activities which will have those effects (at 64(c));

• If the native title party’s belief is that any level of ground-disturbing activity will disturb their ancestor’s spirits, this general assertion is insufficient to disapply the expedited procedure (at 64(d)) and evidence about the ancestors’ spirits reflects a general spiritual concern to which s 237(b) of the Act do not apply (at 64(e));

• The area of the proposed tenement has been subject to prior exploration and possibly mining activity, and is also largely covered by a pastoral lease, so the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area (at 64(f));

• Any ‘Aboriginal site’ (as defined in s 5 of the AHA) within the area of the proposed tenement but not on the Register will be protected by s 17 of the AHA. The grantee party may not contravene s 17 without the consent of the Registrar (s 16 AHA) or the Minister (s 18 AHA), and if the grantee party applied for consent under s 18, the Aboriginal Cultural Materials Committee would need to be satisfied of the adequacy of the consultation with any relevant Aboriginal persons (which in this case, is likely to involve the native title party) (at 64(g)).

1. The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]). I accept the native title party’s contentions that there is a likelihood of sites existing in the proposed tenement which are not on the Register, in addition to the nine registered sites. However, I agree with the Government party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of them being interfered with.

2. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance. I am satisfied, based on the available evidence, that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed tenement, are likely to prevent interference with any area or site of ‘particular significance’ in the context of exploration activities.

1. Taking all of these factors into account, I find there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.

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

1. The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).

2. The native title party contentions directed at s 237(c) of the Act are contained in paragraphs 11 to 16 of its submissions (see [35] above).

3. The Government party response (at 69) states that it does not understand the native title party to be raising a substantive argument under this subsection. They suggest that the native title party focus on 'disturbance of ancestral spirits by damage to sites' (at 70) does not equate to direct physical disturbance or major disturbance (at 71-72). The Government party response (at 74-78) states that the native title party appears to contend that ‘major disturbance to land or waters’ within the ambit of s 237(c) includes the mere presence of unauthorised persons on land, and that this contention is, in effect, that the native title party has a right of exclusive possession or obligation to keep strangers out.

4. It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas at [84]). To that extent, I agree with the Government party’s response that s 237(c) relates to significant, direct physical disturbance of land or waters. Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Geotech at [44]).

5. The Government party response notes that the grant of the proposed licence is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to the land, for the following reasons:

• The grantee party has stated that most of the proposed exploration activities will be low-impact, and any ground disturbing activities are intended to be conducted in a way which will not adversely impact on sites and which will respect local Aboriginal concerns (at 73(a));

• The exercise of rights conferred by the exploration licence will be regulated by the State’s legislative regime and that in the absence of evidence to the contrary, it must be assumed the grantee party will comply with the regulatory regime (at 73(b) and 24-26);

• Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to conditions requiring rehabilitation of land following completion of exploration (at 73(c)); and

• The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and is largely covered by a pastoral lease, so the activities contemplated by the grantee party in the proposed tenement area would be the same, or no more significant, than the previous and continuing use of the area (at 73(d)).

1. In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:

• 88.8 per cent of the proposed licence is covered by a pastoral lease where disturbance has already, and will continue to be, carried out;

• The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4) and numerous additional conditions and endorsements;

• The grantee party has agreed to enter the RSHA should the native title party request it;

• The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);

• There is no evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters; and

• There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.

1. Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter, as envisioned by s 237(c) of the Act.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E08/2361 to Croydon Gold Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
12 July 2013