Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group Nl - [2013] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (15 February 2013)

Application No: WO2012/0425

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Cyril Barnes and Others on behalf of Central East Goldfields People (WC1999/030) (native title party)

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The State of Western Australia (Government party)

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AngloGold Ashanti Australia Ltd; Independence Group NL (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  15 February 2013

Catchwords: Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – whether acts are likely to involve major disturbance to land or waters - expedited procedure attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 61(A)2, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Affairs Planning Authority Act 1972 (WA)
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Land Act 1933 (WA) (repealed), s 33

Cases:
Cheinmora (Oombulgurri)/Striker Resources NL, Mark Thompson and Australian United Gold NL/Western Australia, NNTTA 2
Cyril Barnes and Ors on behalf Central East Claim Group/Western Australia/Fission Energy Limited [2012] NNTTA 128
Dolores Cheinmora & Others on behalf of Balanggarra Native Title Claimants/Heron Resources Ltd/Western Australia [2005] NNTTA 99
Irrunytju-Papulankutja Community/ Western Australia/Broadmeadow Pty Ltd [1995] NNTTA 20
Kevin Cosmos (Yaburara & Mardudhunera)/Western Australia/Baracus Pty Ltd [2012] NNTTA 106
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Palmer Gordon Ngalpil/Western Australia/Glengarry Mining NL [1996] NNTTA 44
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia (2008) 167 FCR 340
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Western Australia v Ward (2002) 191 ALR 1
WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17

Representatives of the
native title party:             Mr Mark Rumler, Goldfields Land and Sea Council
  Ms Bianca McLean, Goldfields Lands and Sea Council

Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party: Ms Khalida Popal, AngloGold Ashanti Australia Ltd; Independence Group NL

REASONS FOR DETERMINATION

On 11 January 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E28/2187 (‘the proposed licence’) to AngloGold Ashanti Australia Ltd; Independence Group NL (‘AngloGold’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, that the proposed licences are acts which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is located in the City of Kalgoorlie-Boulder and comprises 7 square kilometres or 70BL, 170 kilometres west of Rawlinna.
The proposed licence is situated entirely within the registered native title claim of the Central East Goldfields People (WC1999/030 – registered from 4 October 1999). No other registered native title claims or determination areas overlap the proposed licence.
On 10 May 2012, Cyril Barnes and others on behalf of the Central East Goldfields People (‘the native title party’) made an expedited procedure objection application to the Tribunal in respect of E28/2187 (designated by the Tribunal as WO2012/0425).
On 15 May 2012, the native title party filed an amended Form 4 which changed the date of notice (item 6) to 11 January 2012. The amendment reflects the correct date of notice. The amendment was filed after the s29 closing date for the lodgement of objections (11 May 2012) but I accept the amended form on the basis that it rectifies a technical rather than substantive error in the original form.
In accordance with standard practice, 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 allow a four month period, after the s 29 closing date for the lodgement of objections (11 May 2012), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the first preliminary conference on 26 June 2012, the grantee party requested that the matter proceed to inquiry.
The Government party lodged supporting documents on 2 October 2012; the native title party lodged a witness statement of Victor Willis dated 27 September 2012 and affidavits of Audrey Leslie Sinclair and Faith Donna Sinclair, both dated 8 October 2012; the grantee party lodged a statement of contentions on 16 October 2012 (GP Contentions) and the Government party lodged a statement of contentions in response and a statement and copy of documentation related to the vesting of CR 30491 on 1 November 2012 (GVP Contentions).
On 7 November 2012, I was appointed Member for the purposes of the conduct of an inquiry into the application.
The Government party documentation lodged on 2 October 2012 was due on 1 October 2012, and therefore filed one day out of time. I accept the late submission on this occasion with reference to s109 of the Act. The Government party’s Contentions lodged on 1 November 2012 were due on 29 October 2012, and therefore filed three days out of time. I note that Ms McLean, on behalf of the native title party, wrote to the Tribunal on 1 November 2012 requesting that the Government party’s contentions filed on 1 November 2012 not be accepted. Pursuant to the Tribunal’s request made on 9 November 2012, Mr McCloskey on behalf of the Government party provided a statement dated 12 November 2012 which provided reasons for the delay. These reasons included delays associated with transfer of information between Department of Mines & Petroleum and State Solicitor’s Office between 24 October 2012 and 1 November 2012. The native title party submits that the Tribunal has noted in recent decisions that it will not always accept late submissions (Kevin Cosmos (Yaburara & Mardudhunera)/Western Australia/Baracus Pty Ltd [2012] NNTTA 106 at [9]) and that it should not in this case.
The not infrequent failure of parties to comply with Tribunal directions inhibits the orderly and timely disposition of matters that come before it. The Tribunal has repeatedly emphasised the importance of parties seeking extensions of compliance dates before they fall due rather than providing subsequent explanations for the failure to comply. The guiding principle for a Tribunal member in these situations must be s 109(1) of the NTA. In my opinion that section must be interpreted in a common sense manner and the major consideration should be the likelihood of prejudice to the parties other than the offender, and the capacity of the Tribunal to carry out its functions fairly and efficiently. In these circumstances I do not consider, nor did the native title party suggest, that any prejudice has been suffered and so I accept the Government party’s contentions.
On 20 November 2012, I directed that the native title party should comment on why the expedited procedure should apply in circumstances where the underlying tenure was a Reserve for the Use and Benefit of Aborigines to which Part III of the Aboriginal Planning Authority Act 1972 applied (Reserve 22100) (see Dolores Cheinmora & Others on behalf of Balanggarra Native Title Claimants/Heron Resources Ltd/Western Australia [2005] NNTTA 99 (22 December 2005)) by 30 November 2012. The native title party accordingly filed a statement on this issue on 30 November 2012 (NTP Further Contentions). I also directed that the grantee party and Government party could file any responsive evidence confined to the above issue by 12 December 2012, and a Government party response (GVP Further Contentions) was subsequently filed on 12 December 2012.
On 20 December 2012, parties were notified that I intended to determine the matter on the papers unless any submissions were received to the contrary by 10 January 2013. In response, Ms McLean for the native title party advised on 10 January 2013 that they did not formally oppose the decision to determine the matter on the papers, but submitted I should make findings on ‘the significance of the area’ and that it is the native title party who should be the ‘relevant aboriginal community’ to be consulted on issues relating to access to Reserve 22100.
On 10 January 2013 the Government party also advised that it does not object to this matter being determined on the papers. The Government party submitted in response to the issues raised by Ms McLean in her email referred to in paragraph [13] above. They submit the issue of the significance of the sites should be determined on the basis of the evidence put before the Tribunal. They further submit that the question of who was to be consulted as ‘the relevant aboriginal community’ was not a matter for the Tribunal to determine in the context of these proceedings.
I am satisfied that the matter can be determined on the papers. In regard to the other matters raised, I will address these further in the decision.

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) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been strengthened.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’).

Evidence in relation to the proposed acts

Tengraph Quick Appraisal documentation provided by the Government Party (State Solicitor’s Office) establishes that the underlying tenure of the proposed licences is a Use and Benefit of Aboriginal Inhabitants Reserve 22100 at 94 per cent, Conservation of Flora and Fauna reserve 30491 at 5.2 per cent and vacant Crown land at 0.8 per cent. There are no Aboriginal communities within the vicinity of the proposed licence.
The Quick Appraisal documentation also establishes two previously granted exploration licences (overlapping 19.2 per cent and 100 per cent respectively) and a temporary reserve, granted in 1965 and cancelled in 1967, which overlapped the tenement 42.5 per cent.
DIA documentation indicates the following 3 registered Aboriginal sites are within the area of the proposed licence:

Site 2152 – Skeletal material/ burial.
Site 3147 – Mythological, artefacts/ scatter.
Site 3148 – Mythological, quarry.

DIA documentation also indicates fourteen ‘other heritage places’ comprising ten ‘isolated burial sites’ (sites 19005, 19006, 19011, 19012, 19013, 19015, 19016, 19020, 19021, 19022 and 19023), a Tjitji (child) cemetery site at Cundalee Mission (site 19009), childrens’ graves area (site 19010), Nyirunya trees (site 19015) and Karpanya (Nyiru’s tree) (site 21267).
Government party submissions include a Draft Tenement Endorsement and Conditions Extract which indicates that the grant of the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 at [11]-[12]) and two further conditions requiring the prior written consent of the Minister for Mines & Petroleum before commencing any exploration activities on Use and Benefit of Aboriginal Inhabitants reserve 22100, and the prior written consent of the Minister for Mines & Petroleum, with the concurrence of the Minister for Environment, before entering or commencing any prospecting or exploration activity on Conservation of Flora and Fauna Reserve 30491. The Tribunal’s mapping reveals that Reserve 22100 is known as The Cundeelee Aboriginal Reserve, and Conservation of Flora and Fauna Reserve 30491 is known as the Queen Victoria Spring Nature Reserve.
The following draft Endorsements (which differ from conditions in that the licensee will not be liable to forfeiture of the proposed licences if breached) are noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3. The Licensee’s attention is drawn to the 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
4. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5. 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) Aquifiers and Wells the following endorsement applies:
6. 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 of Waterways the following endorsement applies:
7. Advice shall be sought from the DoW if proposing any 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 Ground Water Areas the following endorsement applies:
8. 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.
The Government party also indicates (GVP Contentions, para 17) that a further condition will be placed on the grant of the proposed licences requiring the licensee, at the request of the native title party, to execute in favour of the native title party the Regional Standard Heritage Agreement (‘RSHA’) as follows:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Central East Goldfields People, the applicants in Federal Court application no. WAD70 of 1998 (WC99/30), such request being sent by pre-paid post to reach the Licensee’s address, PO Box Z5046, PERTH, WA 6831 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Central East Goldfields People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Goldfields Land and Sea Council.
The Government party in its contentions filed on 1 November submitted that the materials provided by the native title party to the Tribunal were of little assistance to it in establishing whether or not there was a likelihood of interference with its community or social activities or sites of particular significance within the area of the proposed licence (GVP Contentions, para 26). They also set out the procedures by which the grantee party would be required to adhere before access would be granted to the area of the proposed tenement both in relation to the Cundeelee Aboriginal reserve and the Queen Victoria Nature Reserve.

Native title party contentions and evidence

In support of its submissions, the native title party provides the following:

Witness statement of Victor Willis dated 27 September 2012;
Affidavit of Audrey Leslie Sinclair sworn 8 October 2012; and
Affidavit of Faith Donna Sinclair sworn 8 October 2012.

In correspondence to the Tribunal on 8 October 2012, Mr Mavec stated that Mr Willis’ statement is not in affidavit form ‘due to unavailability of GLSC staff and logisitical circumstances’. Mr Mavec indicated that if any party sought to challenge the deponent’s evidence on this ground, he would seek a reasonable period of time in which to make further efforts to obtain evidence in affidavit form. On this issue, the Government party (GVP Contentions, para 5) stated that it takes no special issue with the character of Mr Willis’ evidence. I accept Mr Willis’ statement.
The witness statement of Mr Willis is made in the following terms:
1.   My name is Victor Willis. I was born in 1965.
2.   I am an applicant for the Central East Goldfields native title claim. I am a wati, an initiated man.
3.   I can speak for the Cundeelee and Connana area. That’s part of my ngurra, my country. I was born in Kalgoorlie, but I grew up at Cundeelee and then Coonana. I went to high school in Norseman but then went back to Cundeelee to go through the law and learn the sacred things. Later I moved to Coonana, near Cundeelee on the Transline.
4.   Cundeelee is a very important place. There is a mission there, a big mob of us lived there and a lot of people were born there. When I talk about Cundeelee I don’t just mean the mission though, I’m talking about all that area around there where we used to camp and hunt and bury our people.
5.   In that area there is a lot of wildlife and special trees. There’s a soak northeast of Cundeelee (inside tenement E28/2187). You have to dig but the water comes up clear and fresh.
6.   Cundeelee also has Dreaming places. I know the stories for those places and they need to be protected.
7.   If you go out to Cundeelee the spirits will be watching. They’ll shout at you and ask “what you doing?” You have to talk to the spirits so they recognise you.
8.   We put up a sign at Cundeelee: “No trespassing” – people need to stay out of there. It’s a very sensitive area for us. If people mined at Cundeelee, bad things would happen.
Graves in tenement E28/2187
9.   I have seen an aerial photograph of tenement E28/2187. I recognise that area and I know that country well.
10.    I don’t like that mining tenement being over this area. If you showed this to the old people they’d get mad and start growling. You can’t muck around in that area, that’s where the old people are buried.
11.    That area is all full of graves. That’s where we buried our people from Cundeelee. The kids were buried close to the mission but the old people were buried out right through that tenement. There are graves scattered all over, in different places, mostly around the road.
12.    Some people were buried to the west of the tenement. My mother is buried out that way. But most people are buried out to the east of the mission, inside the tenement. I know the families of the people who are buried out there.
13.    I helped bury four of my in-laws out there. I dug their graves with a shovel and a crowbar. That’s your responsibility as a brother-in-law. I know where those graves are still and some of them are inside the tenement.
14.    People weren’t buried in a coffin, only wrapped in a blanket. We put leaves on top and logs across their grave. We would come back one year later to rebury them. There’s no fence around them, but we all know where the graves are.
15.    I feel responsible for those graves. I have to make sure there’s no mining or drilling or digging out there. They aren’t animal bones out there – you just can’t dig them up. That’s wrong, really wrong.

The affidavit of Audrey Sinclair is made in the following terms:
I, Audrey Leslie Sinclair, of 49A Vivian Street, Boulder, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.   I swear this affidavit in support of the native title party’s objection.
2.   My name is Audrey Leslie Sinclair. I was born 5 June 1958.
3.   I am a member of the Central East Goldfields native title claim. The claim area is part of my father Don Sinclair’s country.
4.   I have seen aerial and topographic maps of the tenement E28/2187. That tenement is on the eastern part of the Cundeelee Aboriginal Reserve.
5.   I speak for the Cundeelee and Coonana area. That’s part of my ngurra, my country. I was born in Kalgoorlie, but grew up at Cundeelee and lived there until the mission closed and we were moved to Coonana in 1985. I now live in Boulder.
6.   I visit Cundeelee, Coonana and Tjuntjunjarra regularly. I go all around there all the time.
7.   The mission at Cundeelee was where I grew up. A lot of Aboriginal people lived there. Some of my family got married there at the church. My aunty Elizabeth was the first child born at Cundeelee.
8.   A big mob of people were buried out there too. All round the Cundeelee area, including within the tenement. There is a cemetery right there at the mission, but there are people buried all over as well, out in the bush. I have family buried out there. Some of the graves are just marked with something tied to a tree. There are lots of these around the place. Some have a rock to show where the grave is. But only Aboriginal people would know how to recognise the signs.
9.   Cundeelee also has the sacred tadpole rockhole, called Upurl Upurli. This is a sacred rockhole for us and there is a Dreaming story about it.
10.    The Seven Sisters story is a very important story for that area. It is a woman’s story. There are other Dreaming places in the tenement area. I know the stories for those places and they are sacred.
11.    Our people are always coming to this area. They come to camp and to swim in the creek. The people who were brought here to the mission still come back to visit.
12.    In that area (tenement E28/2187) there is a lot of wildlife and bush tucker. We hunt the marlu (red kangaroo), yabu marlu (rock kangaroo), kulpirt (grey kangaroo), rabbit, emu, turkeys and bardis (witchetty grubs).
13.    There are plenty of native plants such as quandong berries and karkula (wild pears) too. If people mined at Cundeelee, all the food will disappear. It will be all gone.
The affidavit of Faith Sinclair is made in the following terms:
I, Faith Donna Sinclair, of Coonana Community, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.   I swear this affidavit in support of the native title party’s objection.
2.   My name is Faith Donna Sinclair but I am known as Donna Sinclair. My Aboriginal name is Kudadil. I was born in 1979 in Kalgoorlie.
3.   I am a member of the Central East Goldfields native title claim, through my father Don Sinclair.
4.   I have seen aerial maps of the tenement E28/2187. I know the area where that tenement is. That’s in my country and it was part of my father’s area too.
5.   I grew up at Cundeelee – I played out there as a little kid. As a child I was told what places I can go and can’t go – we all learned that. When the mission was shut down, I moved to Coonana where I live now.
6.   The road through the tenement E28/2187 is an old back track. People used to travel from Cundeelee up north via that road. They would travel up during law time, for ceremonies. I’ve been along that road with my father. He told me about the areas and special trees that are for initiated men only, where women have to keep away. Some of those places are in the tenement, but I can’t talk about them. You’d need to speak to Victor Willis or the old people about places like that.
7.   Up in the northern part of the tenement is a big rockhole. I was shown it by my father and have been back to it since. You walk up the top of it like a small hill and then you look straight down to see the water. You have to throw a rock in the water before you take any to drink, and it’s fresh and clean. You can’t do any drilling or blasting at that rockhole, it’s wrong and the old people will get wild.
8.   All around the mission, people are buried. The graves are mainly around the mission but there are others further out, in all directions, buried a long way apart. Some of my brothers and sisters, my grandfather and his wife, and my grandmother are all buried out in the Cundeelee area. We still go out there to sweep those graves clean and show them to our kids to look after.
Mr Willis is a member if the applicant for the native title party and an initiated man. I accept he has authority to give evidence on behalf of the native title party. Audrey and Faith Sinclair are members of the native title party and the daughters of Don Sinclair whose son Stevie is a member of the applicant of the native title party and they consequently have authority to give evidence on its behalf. The evidence of all three is uncontested and I accept its truth.
The native title party’s contentions regarding the ‘underlying tenure’ issue states, in summary, as follows:
•     The native title party accepts the government party’s submission that in practice the Minister for Indigenous Affairs requires a grantee party to negotiate an agreement with the relevant Aboriginal community in respect of access for exploration activities to land which Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA) (‘AAPA Act’) applies (NTP Contentions, para 2);
•     In Dolores Cheinmora & Others on behalf of Balangarra Native Title Claimants/Western Australia/Heron Resources Ltd [2005] NNTTA 99, the Tribunal found, as a result of the above arrangements, that there was not likely to be interference with areas of land to which Part III of the AAPA Act applied (NTP Contentions, para 3);
• Reserve 22100 (the Cundeelee reserve) overlaps 94% of the area of the proposed tenement and is asserted to be land to which Part III of the AAPA Act applies (NTP Contentions, para 4);
•     An important qualifier to the principles referred to above was recognised by the Tribunal in Palmer Gordon Ngalpil/Western Australia/Glengarry Mining NL [1996] NNTTA 44 (‘Ngalpil’), where then-Member Sumner stated that the existence of land to which Part III of the AAPA Act applies is highly significant, ‘provided that the native title parties are the Aboriginal community who occupy or reside on the reserve’ (Ngalpil at 13) (NTP Contentions, para 8);
•     Ngalpil also describes the policy of the relevant Minister as only requiring agreement with a single Aboriginal community identified by the government party, which will not necessarily be the native title party (Ngalpil at [8]-[9], [14]) (NTP Contentions, para 9);
•     There are Aboriginal people who are not members of the Central East Goldfields native title claim group who have cultural interests in the Cundeelee reserve. In particular, members of the Spinifex people lived at Cundeelee from the 1950s to early 1980s while temporarily displaced by the Maralinga atomic testing (NTP Contentions, para 10);
•     The government party has provided no evidence that it will seek the consent of the native title party rather than a different Aboriginal group in relation to exploration activity on the Cundeelee reserve (NTP Contentions, para 11).

Grantee party contentions and evidence

The grantee party lodged a statement of contentions relying on and supporting the Government party’s contentions. The grantee party asserts that the area has been the subject of extensive exploration and mining in the past and is prospective for the discovery of viable gold resources (GP Contentions, para 3). The grantee party undertakes to comply with all relevant legislation and states that it is standard operating practice for it as a company to engage with native title representatives and commission heritage assessments and surveys in cooperation with them (GP Contentions, paras 6-7). The grantee party affirms that it is prepared to enter into the GLSC standard heritage agreement. It submits that in March 2012 it was requested by the GLSC to execute that document and return it to the GLSC’s office. The grantee party did execute the document and return it but the objection was lodged nonetheless. According to the native title party, the letter was sent out in error (GP Contentions, paras 8-11). The grantee party maintains that is has excellent relations with a number of other native title groups indicating that it has entered into at least 18 alternative heritage agreements and 128 standard heritage agreements with at least 10 different claimant groups (GP Contentions, paras 13-16).

The relevant land

To the extent that it is necessary I am satisfied as to the validity of Reserve 22100 which was vested in the Aboriginal Lands Trust pursuant to s 33 of the Land Act (1933) on 3 August 1973 for the purposes of the use and the benefit of Aboriginal people, and that it is land to which Part III of the Aboriginal Affairs Planning Authority Act (1972) (AAPA) applies. Similarly I accept that Crown Reserve for the purposes of the Conservation Flora and Fauna number 30491 was vested pursuant to s 33 of the Land Act (1933) on 21 August 1970. The question of the Queen Victoria Springs Nature Reserve was touched on in a recent decision of the Tribunal to dismiss an expedited procedure application (see Cyril Barnes and Ors on behalf Central East Claim Group/Western Australia/Fission Energy Limited [2012] NNTTA 128 (5 December 2012). In that matter the objection was dismissed on the basis that all native title rights and interests had been extinguished within the Queen Victoria Springs Nature Reserve (see [5]-[6]). In this matter, 5.2 per cent of the land falls within the Queen Victoria Springs Nature Reserve. By virtue of the vesting of the nature reserve in 1970 all native title rights and interests existing in the area of the nature reserve were extinguished (see Western Australia v Ward (2002) 191 ALR 1 at 219).
Further, by virtue of that extinguishment the whole of the area of the proposed licence which is within the Queen Victoria Nature Reserve is excluded from the Central East native title application (see s 61A (2) of the Act). Therefore, to the extent that the proposed licences fall within the Queen Victoria Spring Nature Reserve, the grant of the proposed tenement is not a future act for the purposes of s 233 of the Act and the native title party are not holders of native title rights and interests in relation to the land and waters concerned pursuant to the requirements of s 237. Consequently, in considering the application of s 237 to this particular act, I could not take into account any activities or sites of particular significance which are located within Queen Victoria Springs Nature Reserve. In any event, it is not apparent to me that any of the evidence provided to me by the native title party relates to the Queen Victoria Spring Nature Reserve.
In relation to the Reserve for the Use and Benefit of Aboriginal People 22100, or the Cundeelee Aboriginal Reserve, the key issue is whether the exception identified by then Member Sumner in Palmer Gordon Ngalpil/Western Australia/Glengarry Mining NL [1996] NNTTA 44 (2 October 1996) (Ngalpil) to the rule identified by Seaman DP in Irrunytju-Papulankutja Community/Western Australia/Broadmeadow Pty Ltd [1995] NNTTA 20 (6 October 1995) and confirmed in the more recent decision of Dolores Cheinmora & Ors on behalf of the Balanggarra Native Title Claimants/Heron Resources/Western Australia [2005] NNTTA 99 (22 December 2005). In Irrunytju-Papulankutja Deputy President Seaman found that the legislation and practice relating to entry to Aboriginal reserves (the subject of Part III of the AAPA Act) made it unlikely that there would be interference with places of significance in accordance with the traditions of the native title party. Deputy President Seaman made it clear that had the area of the proposed licence been outside an Aboriginal reserve, he would have found that interference was, in fact, likely. He commented:
‘It follows from the views that I've expressed that if an application of this sort came before me in which similar findings were made about areas or sites of particular significance, I would only make a determinations that the expedited procedure applied if the proposed exploration licence was conditioned to the effect the Minister would not consent to exploration until the grantee party produced a written work area agreement/program clearance agreement with the native title party’.
The evidence suggested in that matter that the relevant community with which the ALT would consult before informing the Minister was the Ngaanyatjarra Land Council, which was the holder of leases over the Reserve the subject of the licence application, and not specifically the native title party. However, in that circumstance, all the people who were members of the native title party were entitled to be members of the Ngaanyatjarra Land Council.
In the Ngalpil case, Member Sumner agreed with the conclusions of Deputy President Seaman in Irrunytju and also referred to his earlier decision of Cheinmora (Oombulgurri)/Striker Resources NL, Mark Thompson and Australian United Gold NL/Western Australia, NNTTA 2 (19 January 1996) at [29] where the Tribunal concluded that the fact that the entry permit depended on a Ministerial discretion was not sufficient to render the regulatory regime ineffective. The Tribunal also found in that matter that there would need to be evidence that it was no longer the practice to require an agreement prior to granting an entry permit, or that discretion was being implemented in such a way that it was likely that the interference and disturbance referred to s 237 would occur before the approach of the Tribunal would change. Member Sumner came to the conclusion that because the Minister required the agreement with the Wirrimanu Corporation at Balgo, but not with the registered native title claimant, the question of whether the expedited procedure was attracted would need to be considered on the basis of the general principles relating to s 237 of the Act. This was because the NTA concerned the protection of the rights and interests of the registered native title claimants and the evidence supported that few, if any of them, were associated with the Wirrimanu Corporation. It should be noted that that conclusion was based on the evidence specific to that objection. In that objection it was clear that the Wirrimanu Corporation at Balgo was the relevant community to be consulted by the ALT pursuant to the regulatory regime. The Government gave evidence to the effect that if the mining company registered an agreement with the Wirrimanu Corporation, notwithstanding the dispute that existed between them and the native title party, the Government party would not require the grantee party to enter into any agreement with the native title party. The fundamental point made by Member Sumner was that in his view, the consultations which took place and any subsequent agreement required under the regulatory regime needed to be made with the registered native title claimant on the basis that ‘once a native title claim is registered, the claimants are entitled to a right to negotiate under the Act and this cannot be avoided by the Government party or grantee parties unless the expedited procedure is attracted’.
In Cheinmora (2005) the Tribunal found that the relevant process of consultation with the affected Aboriginal community and the ALT was the subject of a Memorandum of Understanding between the Department of Indigenous Affairs, the Kimberley Land Council (the representative body) and the ALT. In the matter I found that at least some of the Community members were also members of the relevant native title claim and that therefore consultation with the native title party must occur before permission to access the subject area is approved. The Kimberley Land Council represented the native title party in that matter and the Tribunal found that ‘unlike the situation described in Ngalpil, the community members consulted would comprise a significant number of the people who are members of the native title claim group’. Indeed the focus of the KLC consultation process was likely to be the native title party rather than any particular community and in those circumstances, I concluded that the provisions of the regulatory regime were sufficient to allow the Tribunal to conclude that it was not likely that any of the three limbs of s 237 would be offended (at [23]).
In this matter the Government party submits, and the native title party accepts, that the current practice of the Department of Indigenous Affairs on behalf of the ALT is that they will consult the relevant representative body and any lessee or community located on the land (GVP Further Contentions, para 7). In this case the native title representative body is the Goldfields Land and Sea Council who act on behalf of the native title party. The native title party, in its contentions on underlying tenure, assert that the Government party was likely to consult not with members of the native title party who have cultural interests in the Cundeelee Aboriginal reserve but rather with members of the Spinifex People who lived at Cundeelee from the 1950’s to the early 1980’s while temporarily displaced but the Maralinga Atomic testing (NTP Further Contentions, para 10). Further, the native title party state that in the absence of clear evidence that the native title party’s consent is a pre condition to the grant of access to the Cundeelee Aboriginal reserve, the Tribunal should conclude that the regulatory regime is not relevant to the determination (NTP Further Contentions, para 13).
In fact the evidence referred to above, by which the Government party refers to the native title representative body for the area, indicates that it is likely, in my view, that the native title party through the representative body will be the focus of any discussions or consultation processes under the regulatory regime, which will be required for access to be granted to the grantee party. In any event, in circumstances where the evidence does not lead the Tribunal to the view that there is sufficient evidence to attract any of the limbs of s 237, such considerations are superfluous.

Community or social activities – s 237(a)

The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licences and activities undertaken pursuant to it 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 v Western Australia (2001) 108 FCR 442 at [23] (‘Smith’). The notion of 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: Smith at [26]. The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
The bulk of the evidence of the native title party deponents relate to the existence of a large number of unidentified graves within the area of the area of the proposed licence, which in one sense could be considered community and social activities. However, the tenor of the evidence in my view makes them more relevant to be considered under the rubric of sites or areas of particular significance and I will do that at the appropriate juncture. The evidence of Audrey Sinclair suggests that there is a ‘lot of wildlife and bush tucker’ within the area of the proposed tenement. In that area the native title party is said to hunt Marlu (Red Kangaroo), Yabu Marlu (Rock Kangaroo), Kulpirt (Grey Kangaroo), Rabbit, Emu, Turkeys and Bardies (Witchetty Grubs). Further, there are plenty of native plants including Quandong Berries and Karkula (wild pears) which Ms Sinclair suggests will disappear if mining is allowed in the area (see 12 and 13). Mr Victor Willis also deposes in his evidence that there is a lot of wildlife and special trees in the area and a soak northeast of Cunderlee, within the area of the proposed tenement which produces clear fresh water (see 5). Ms Faith Sinclair in her affidavit also refers to a big rock hole in the northern part of the proposed licence area which produced good, clean fresh water and if it was drilled or blasted, the ‘old people would go wild’ (see 7).

In my opinion the evidence provided by the native title party deponents in relation to community and social activities in this matter is insufficient to satisfy me that there the grant of the proposed licence will directly interfere with the carrying on of social and community activities, on the basis that the evidence refers to hunting and gathering activities which take place within the Cundeelee reserve as a whole as well as within the proposed licence area, and do not differentiate between the two. In relation to the soak or rock hole in the northern part of the tenement, given the nature of the conditions to be imposed on the grantee party it appears to be unlikely that the grantee party’s activities will interfere with the existence of those rock holes or the capacity of the members of the native title party to extract water from them.

Sites or areas of particular significance – s 237(b)

The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The AHA protects all Aboriginal sites, whether registered or not. By the same measure, 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 evidence produced by the native title party contained in the witness statement of Victor Willis, Audrey Leslie Sinclair and Faith Donna Sinclair focus largely on the existence of a number of graves within the area of the proposed tenement. Mr Willis, in his statement, indicates that the area is ‘full of graves’. He suggests that while younger people may be buried closer to Cundeelee (‘the mission’), older people were buried right out ‘through that tenement’. He suggests the graves are scattered ‘all over and in different places mostly around the road’ (see 11). Mr Willis also indicates that his mother is buried ‘out that way’ and that most people are buried to the east of the mission inside the tenement (see 12). Mr Willis also testifies that he buried four of his ‘in-laws’ out there and he knows where those graves are, and some of them are inside the tenement (see 13). Mr Willis indicates that he is concerned that should mining activity take place, these graves might be disturbed (see 15).
In her statement, Audrey Sinclair states that ‘a big mob of people are buried out there too’. She indicates that the graves are all around the Cundeelee area ‘including within the tenement area’. She states that there is a cemetery close to the mission but people are buried ‘all over as well, out in the bush’. She gives evidence to the effect that some of the graves are marked in one way or another but that only Aboriginal people would recognise them (see 8). Donna Sinclair in her statement indicates that there are many graves in the area of the mission and further out ‘in all directions’ (see 8). She does not however make reference to graves existing within the proposed licence area. In her statement, Audrey Sinclair also makes reference to the sacred tadpole rock hole called Upurl Upurli (see 9). Similarly, she also deposes to the fact that the Seven Sisters story ‘is a very important story for that area’ (see 10). She does not indicate that the story is specifically related to the proposed licence area but does state ‘there are other dreaming places in the tenement area. I know the stories for those places and they are sacred’ (see 10).
The evidence provided by the native title party in relation to sites of particular significance does not elaborate on the grounds for the particular significance of the graves concerned other than, presumably, to rely on the implicit sacred nature of graves to families and communities. There is no specificity provided in relation to the location of these graves at all other than the reference to them being near the road. The references to Upurl Upurli and the Seven Sisters story in the affidavit of Audrey Sinclair give no indication that the Upurl Upurli rock hole is within the tenement area at all. The statement made in paragraph 10 is about the Seven Sisters story unclear. I am prepared to accept that the reference to ‘that area’ in paragraph 10 is a reference to the area of the proposed licence and therefore the suggestion is the Seven Sisters is an important story for that area and the third sentence in the paragraph ‘there are other dreaming places in the tenement area’ suggests there are other dreaming places apart from the Seven Sisters story. However, again, there is no indication as to the nature of those stories, the grounds for the particular significance of any particular place, or its location. The Tribunal has repeatedly found that in order to satisfy the requirements of s 237(b) of the NTA in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance (see WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 at [45]).
In these circumstances I am not able to conclude that there are any sites of particular significance within the area of the proposed licence. I would add, however, that I do not intend in any way to suggest by this finding that the graves of any Aboriginal person in the area are not of great significance to their families and the entire community and those areas are of course subject to strict requirements set out under the AHA. I would also note that there are two grounds on which the Tribunal can be satisfied that there is in fact unlikely to be any disturbance to the graves which are suggested to exist in the area. The first ground for that belief is evidence of the willingness of the grantee party to enter into the Regional Standard Heritage Agreement which requires consultation with the native title party before ground disturbing activities take place. Secondly, as indicated above, before the grantee party will be able to gain access to this area, it will need to go through the regulatory process set out in relation to lands held under Part III of the AAPA Act which as indicated above, by virtue of the practice of consultation with the local representative body will in all likelihood mean direct consultation between members of the native title party and the grantee party before access will be granted to the area of the proposed licence.

Major disturbance to land or waters – s 237(c)

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 at [41]-[57]).
The native title party has not provided any evidence in relation to s237(c), and consequently I am unable to find that the proposed licences will result in a major disturbance to land or create rights which will do so.

Determination

The determination of the Tribunal is that the grant of prospecting licence E28/2187 to AngloGold Ashanti Ltd; Independence Group NL is an act attracting the expedited procedure.

Daniel O’Dea
Member
15 February 2013