Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Copley Pty Ltd

[2012] NNTTA 109

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Copley Pty Ltd [2012] NNTTA 109 (22 October 2012)

Application No:               WO11/1362-1363

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 (WC99/30) (native title party)

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The State of Western Australia (Government party)

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Copley Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  22 October 2012

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 not attracted.

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

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15

Champion v Western Australia [2005] 190 FLR 362

Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf [2012] NNTTA 50

Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24

Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18

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

Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59

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

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

Walley v Western Australia (2002) 169 FLR 437

Representative of the      
native title party:             Mr Dante Mavec, Goldfields Land and Sea Council

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

Representatives of the    
grantee party:                 Ms Catherine Melia, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

1. On 10 August 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P25/2215 and P25/2216 (‘the proposed licences’) to Copley Pty Ltd (‘Copley’) and included in the notice a statement that it considered that the grants 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 Tribunal understands that Aruma Resources Limited (‘Aruma’) has entered into an agreement with Copley to purchase the proposed licences, which will be transferred to Aruma upon grant. Throughout these reasons, any reference to the grantee party should be taken as reference to both Copley and Aruma.

2. The proposed licences are located in the City of Kalgoorlie-Boulder and comprise areas of:

   ·P25/2215 – 42.52 hectares, 41 kilometres east of Kalgoorlie; and

   ·P25/2216 – 116.07 hectares, 41 kilometres east of Kalgoorlie.

The proposed licences are situated entirely within the registered native title claim of the Central East Goldfields People (WC99/30 – registered from 4 October 1999).  No other registered native title claims or determination areas overlap the proposed licences.  Both of the proposed licences are located on Lake Yindarlgooda.

1. 5 December 2011, Cyril Barnes and others on behalf of the Central East Goldfields People (‘the native title party’) made expedited procedure objection applications to the Tribunal in respect of P25/2215 and P25/2216 (designated by the Tribunal as WO11/1362 and WO11/1363 respectively).

2. On 20 December 2011, Deputy President Sumner was appointed Member for the purposes of the conduct of an inquiry into the applications. 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 (in this case, 12 December 2011), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

3. The Government party lodged supporting documents on 23 January 2012, followed by a statement of contentions in respect of each of the proposed licences on 2 April 2012 (‘GVP Contentions’).  The native title party lodged contentions on 10 April 2012 (‘NTP Contentions’), accompanied by affidavits made by Daniel Steven Sinclair, a letter sent by Goldfields Land and Sea Council (‘GLSC’) to Copley on 6 September 2011 and a copy the Western Australian Auditor General’s Report 8 of September 2011 entitled Ensuring Compliance with Conditions on Mining (‘the WAAG Report’).  On 14 May 2012, the grantee party lodged contentions (‘GP Contentions’) and supporting evidence, including the affidavits of Peter Bernard Schwann and Michael David Tucker, Tengraph maps of the proposed licences and emails exchanged between Mr Schwann (who is the Managing Director of Aruma) and Aaron Rayner, Chief Heritage Officer for Department of Indigenous Affairs (‘DIA’).  The Government party lodged a statement of contentions in response on 21 May 2012 (‘GVP Response’), and replies were lodged by the native title party (‘NTP Reply’) and the grantee party (‘GP Reply’) on 6 June 2012 and 25 June 2012 respectively.  The native title party’s reply was accompanied by the affidavits of Dr William Henry Kruse and Thelma Mary O’Loughlin and additional affidavits by Mercy O’Loughlin, Dennis Forrest and Kevin Dimer were subsequently lodged on 7, 8 and 11 June 2011 respectively.  The grantee party’s reply included maps and reports relating to previous mining activity on the proposed licences and in the surrounding area.

4. On 30 May 2012, the native title party notified the Tribunal that it had applied to DIA under the Freedom of Information Act 1992 (WA) for documents relating to its administration and enforcement of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) in respect of Lake Yindarlgooda and sought leave to file further contentions and evidence once the documents had been obtained. Deputy President Sosso (who became the appointed member on 18 April 2012) granted the native title party leave to do so and set directions accordingly. On 25 July 2012, the native title party also sought leave to respond to the grantee party’s reply on the basis that it incorporated a substantial amount of new evidence that had not previously been filed. Leave was granted on 31 July 2012 by President Neate, who assumed conduct of the inquiry on 2 July 2012. The native title party lodged further contentions and evidence in response to the grantee party’s contentions (‘NTP Further Reply’) and in relation to the site protective regime under the AHA (‘NTP Contentions re AHA’) on 10 September 2012.

5. On 19 September 2012, parties advised the Tribunal that they did not intend to file further submissions and agreed that the matter should be determined ‘on the papers’ (that is, without a hearing) pursuant to s 151(2) of the Act. On 24 September 2012, I was appointed to constitute the Tribunal for the purposes of the inquiry. I am satisfied that the objections can be adequately determined on the papers.

Legal principles

1. 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.

1. 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.

2. 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

1. Tengraph Quick Appraisal documentation establishes that the underlying tenure of the proposed licences is the Hampton Hill Pastoral Lease 3114/1214.  There are no Aboriginal communities within the vicinity of the proposed licences. 

2. The Quick Appraisal documentation also establishes in respect of proposed licence:

   ·P25/2215 – one live exploration licence overlapping at nine per cent and four previously granted tenements, including one mining lease granted in 1994 and surrendered in 1994, one prospecting licence granted in 1990 which expired in 1994, one prospecting licence granted in 2000 and surrendered in 2002, and one prospecting licence granted in 2007 and surrendered in 2011 (P25/1806), all of which overlap the proposed licence in its entirety; and

   ·P25/2216 – one live exploration licence overlapping at nine per cent and four previously granted tenements, including one exploration licence granted in 1991 which expired in 1999 (E25/78), one prospecting licence granted in 1995 and surrendered in 1997, one prospecting licence granted in 2000 and surrendered in 2003, and one prospecting licence granted in 2007 and surrendered in 2011 (P25/1807), all of which overlap the proposed licence in its entirety.

3. DIA documentation provided by the Government party indicates that the area within and surrounding the proposed licences is subject to an application for the registration of an Aboriginal site under the AHA, being Lake Yindarlgooda, Mammu Tjukurrpa (Site ID 30603, mythological, closed access, no restriction). The site is currently listed as an ‘other heritage site’ on the Aboriginal Sites Database and its current status is ‘lodged’, meaning that it is awaiting assessment by the Aboriginal Cultural Material Committee (‘ACMC’). There was some dispute between the parties as to the present status of the site, which I address later in this determination. For the time being, it will suffice to note that a current search of the Aboriginal Sites Database indicates that the site is listed as an ‘other heritage site’.

4. 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 pastoral lessee to be notified of the grant or transfer of the proposed licences and of certain activities (conditions 5-6).

5. 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.

6. The Government party states (at para 5(d), GVP Contentions):

   [T]he duly authorised agent for the grantee party has signed a statutory declaration declaring that the grantee party has executed and sent a copy of the Regional Standard Heritage Agreement (‘RSHA’) to the objectors to execute should they accept its terms and conditions. A copy of the statutory declaration is annexed and marked attachment ‘B’.

7. The Government party also indicates (at para 5(e), GVP Contentions) 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 c/- Austwide Mining Title Management Pty Ltd, PO Box 1434, Wangara WA 6947 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 ... [RSHA] ... endorsed by peak industry groups and the Goldfields Land and Sea Council.

Native title party contentions and evidence

1. In support of its submissions, the native title party provide affidavits by:

   ·Daniel Steven Sinclair sworn 24 August 2011 (‘DSS Aff 1’);

   ·Daniel Steven Sinclair sworn 6 December 2011 (‘DSS Aff 2’)’

   ·Thelma Mary O’Loughlin sworn 15 December 2011;

   ·William Henry Kruse affirmed 10 February 2012 (‘WHK Aff’);

   ·Mercy O’Loughlin sworn 7 June 2012 (‘MO Aff’);

   ·Dennis Forrest sworn 8 June 2012 (‘DK Aff’);

   ·Kevin Dimer sworn 11 June 2012 (‘KD Aff’); and

   ·Dante Mavec affirmed 10 September 2012 (‘DM Aff’).

2. Mr Sinclair’s affidavits were provided to the Tribunal in support of its contentions in Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf [2012] NNTTA 50 (‘Pirkopf’). The affidavits are reproduced at [20] and [21] of that decision. Similarly, the affidavits of Thelma O’Loughlin and Dr Kruse were provided in Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Aruma Exploration’) and are reproduced at [26] and [29] of that decision. As such, it is not necessary to reproduce them here. In those decisions, I accepted that the deponents have the necessary authority and qualifications to give the evidence adduced in those matters. No party to the present inquiry has disputed that finding. As the affidavits of Mercy O’Loughlin, Mr Forrest and Mr Dimer relate to allegations made by Mr Schwann, I will discuss them later in this determination. Similarly, I will discuss Mr Mavec’s affidavit in the context of the native title party’s submissions regarding the site protective regime.

3. The native title party also provides a letter sent by Mr Mavec to Copley by way of its representatives on 6 September 2011, prior to the lodgement of the current objections.  In that letter, Mr Mavec draws attention to the significance of Lake Yindarlgooda and notes the native title party’s concerns about works being done on the surface or fringes of the lake.  Mr Mavec also states that the native title party ‘are opposed to mining activities occurring on Lake Yindarlgooda,’ but ‘welcome consultation about where works might occur outside the limits of the lake.’  According to the native title party, GLSC received no response to this letter, which the grantee party does not dispute. 

Grantee party contentions and evidence

1. In support of its submissions, the grantee party provide affidavits by:

   ·Peter Bernard Schwann sworn 14 May 2012 (‘PBS Aff’); and

   ·Michael David Tucker sworn 14 December 2011.

In addition to the affidavit evidence, the grantee party also provide maps and reports relating to previous mining tenure in and around the area of the proposed licences.  These documents include final surrender reports for P25/1806 and P25/1807; Heritage Survey Database searches relating to surveys conducted in respect of mining operations on Lake Yindarlgooda; the combined annual report of Bulong Operations Pty Ltd regarding tenements held by that company on the Western side of the Lake; abstracts of annual mineral exploration reports for E25/78 for years ending 13 October 1994 to 1996 and 1 February 1999; and the full annual mineral exploration report for E25/78 for the year ending 13 October 1994.      

1. The affidavit of Mr Schwann is made as follows:

   I, Peter Bernard Schwann of 10 William Street, Cottesloe, in the State of Western Australia, being duly sworn, make oath and say as follows:

   1.My name is Peter Bernard Schwann, and I am 62 years old.

   2.I have been involved with the Mining Industry my entire working life and quite familiar with aboriginal people and their many different cultures.

   3.My first heritage site and clearance as an active participant was with the Ophthalmia (Newman) Dam and caves in 1980, being 32 years ago.

   4.Aruma Resources Limited has an executed agreement with the Copley Pty Ltd (“Copley”), to purchase the licences upon grant.

   5.Copley is owned by Mr John Geary of Cornwall Street, Lathlain, WA

   6.I am a geologist of over 40 years and am the Managing Director of Aruma.

   7.Aruma has been involved with the Central East Goldfields People (‘CEG’) and Goldfields Land & Sea Council (“GLSC”) since 2010 through the Glandore Project.

   8.Aruma has executed a Deferred Production Agreement (“DPA”) with the CEG claimants on 3 Mining Leases, M25/327, 329 and 330 in April 2012 which encroach over the Lake Yindarlgooda (“Lake”) boundaries.

   9.The Glandore Project was previously owned by Aruma’s parent company, Hemisphere Resources.

   10.Hemisphere Resources had been involved with the Glandore Project since 2007.

   11.The Glandore Project covers the western end of Lake Yindarlgooda.

   12.I have been involved in exploration on Lake Yindarlgooda for several years in my capacity as both geologist and Managing Director of Aruma and have undertaken several exploration programs on the many leases and licences located over the area.

   13.I have been involved with negotiations with Wendy Gilbert, agent for CEG, since May 2010 whilst agreeing on various DPAs which are located over The Lake.  In all past and present negotiations, the supposedly significant site of The Lake has never been brought to my attention.

   14.A group presentation made by Aruma to the assembled CEG Claimants at the GLSC offices in Kalgoorlie was given on Wednesday 19^th May 2010 and no mention of The Lake being a site of significance was made by any of the claimants at that time.

   15.On the 18^th of January 2011, a meeting was held with the representatives of the claim involved and Dante Mavec, a new employee of the GLSC was introduced.  It was on this occasion that the possibility of The Lake being a significant site was mentioned.  This was also the first mention of a Dreaming Site by Dante Mavec – CEG lawyer, not a genuine claimant of the land.

   16.During a clearance of a licence at Steeple Hill over Exploration Licence 28/1833 on 20 June 2011 I asked members of the survey team which consisted of Mercy O’Loughlin, Dennis Forrest and Kevin Dimer (and others) about the mentioned Lake business and they said it was “rubbish”.  On that particular survey, there were two factions, with one being described by a signatory on the CEG Claim as “from Leonora, not this country”.

   17.The statement which regarded the significance of the Lake as “rubbish” was made by one of the men listed above and was said in the presence of my wife Deborah Mary Schwann who is able to corroborate this.

   18.This survey brought us 2 kilometres from the edge of the alleged Mammu Tjukurrpa Heritage Site.  Both Kevin and Dennis said there was nothing of significance around this area for many miles.  Again, no recognition of the Lake was made by these claimants.

   19.The other people who have claim over the area, namely the Widji group, have no such claim or story and it appears the Lake encroaches over their claim also.

   20.It is my knowing that Daniel Sinclair is not known by the Jones Family who are pastoralists of the area.  The Jones’ knew his grandfather, father and uncle.  Mr Sinclar is described as a “Spinifex Man” from the Cundalee area and these people were shifted from South Australia before the British nuclear testing in the 1950s.

   21.It is apparent from the research that this story is an import from South Australia, as defined in the points below.

   ·   The word Tjukurrpa is defined in a study of the Spinifex by Cane, 2002as meaning “Creation Time” (Cane 2002, 32f) and “In this area Mamu (Evil Spirits) abound and thus when people are travelling ... in very general detail publicly as they are stories belonging to Spinifex men.”

   ·   Well known south Australian aboriginal artist Tjaduwa (Angelina) Woods has a painting titled Mamutu and she describes “More than one major Spinifex Tjukurpa (Story) passes through this place although only that associated with an especially powerful Mamu (evil spirit) is spoken about publicly.”

   22.The site was stated as being the Lake plus 250m – 350m from the edge, but it is easily seen that the north eastern boundary runs along the Lake Edge.

   23.I have been informed by an experienced anthropologist (name withheld) that he had previously conducted a survey over an area of the Lake with Stevie Sinclair (Law Man) and the women of the CEG including Mercy O’Loughlin and Thelma O’Loughlin and no mention was made of thee Lake being of any significance.

   24.The fact that the ‘significant’ site of the Lake was temporarily listed and then promptly deregistered with the Department of Indigenous Affairs due to the lack of evidence received.

1. As I observed in Aruma Exploration, where I was asked to consider an affidavit made by Mr Schwann in similar terms to the one reproduced above, parts of the affidavit are clearly hearsay, such as the statements attributed to the unnamed anthropologist and the unidentified claimant.  In Aruma Exploration, I acknowledged that the Tribunal is not bound by the rules of evidence, but nevertheless found it inappropriate to rely on those statements. I have reached the same conclusion here. Although the grantee party now offers an explanation for Mr Schwann’s omission regarding the anthropologist (that is, that the anthropologist asked for his name to be withheld - GP Reply at [10]), that explanation does not compensate for the fact that the native title party is thereby deprived of the opportunity to scrutinise the statement attributed to him. The same reasoning applies to the statement attributed to the unidentified claimant. Therefore, I do not propose to give any weight to those statements. I will return to the statements attributed to Mercy O’Loughlin, Mr Dimer and Mr Forrest at [16]-[17] of Mr Schwann’s affidavit later in this determination.

2. Mr Tucker’s affidavit was provided by the native title party in support of its contentions in Aruma Exploration and is reproduced at [27] of that decision. It is therefore unnecessary to reproduce the affidavit here.

Site Protective Regime

1. The native title party’s initial contentions contained several submissions regarding the site protective regime in Western Australia and were accompanied by the WAAG Report, which made a number of findings regarding the DIA’s performance in monitoring compliance with the AHA. Those findings were considered by Member Shurven in Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘ASJ Resources’), and I expressed my own views on the WAAG Report in Pirkoff at [31], which I adopt here. 

2. In further contentions filed on 10 September 2012, the native title party makes additional submissions regarding the administration and enforcement of the AHA. Specifically, the native title party makes two contentions. First, it contends that the DIA has advised GLSC staff that it will not place Site 30602 (that is, Lake Yindarlgooda) on the Register of Aboriginal Sites or prosecute persons who disturb the lake under s 17 of the AHA unless it receives further information demonstrating that the lake is an ‘Aboriginal site’ (NTP Contentions re AHA at [7]-[8]). Second, the native title party contends that the Government party has been providing mining interests with misleading information regarding the application of the AHA to Lake Yindarlgooda (NTP Contentions re AHA at [9]-[10]).

3. In support of the first contention, the native title party relies on the affidavit of Mr Mavec. In his affidavit, Mr Mavec states that he and Annie Muir (who was then GLSC’s Coordinating Heritage Anthropologist) had a telephone conversation with Mr Rayner on 29 February 2012 during which Mr Rayner said that the ACMC had assessed Site 30602 and recommended that it be placed on the Register of Aboriginal Sites. However, Mr Mavec claims that Mr Rayner told him that the recommendation would not be carried out unless the Registrar of Aboriginal Sites also decided that it merited placement on the Register (DM Aff at [3]-[4]). Mr Mavec also states that he and Dr Craig Muller (GLSC’s Research Manager) met with DIA staff including Mr Rayner and the Registrar of Aboriginal Sites, Dr Kathryn Przywolnik, to discuss a proposal made by DIA to conduct a visit to Kalgoorlie to consult with informants about the heritage values of the lake. Mr Mavec states that, during that meeting, Mr Rayner said DIA intended to enter the lake on the Register of Aboriginal Sites only when satisfied that the site is ‘legitimate’ and ‘beyond challenge’ and there is sufficient information to conduct a prosecution under s 17 of the AHA (DM Aff at [5]-[6]).

4. The Government party did not seek to file further submissions in response to Mr Mavec’s allegations.  However, an email sent by Mr Rayner to Mr Schwann on 11 April 2012 and provided by the grantee party indicates that the ACMC did not in fact make an assessment of Site 30602.  In the email, Mr Rayner states:

   The information provided to the ACMC was incomplete and I am afraid it went to the [committee] in error.  My view is that the ACMC did not make any assessment as they were not appraised of all the facts.

This suggests that Site 30602 was not entered on the Register of Aboriginal Sites due to the fact that the ACMC did not consider that it had access to sufficient information to make a recommendation and not because of any view the Registrar may have formed regarding the merits of the application. If DIA officers told the native title party that it would not commence any prosecutions in respect of the site, that was a reasonable position for DIA to take given that it considered there to be insufficient evidence to demonstrate that the lake is an ‘Aboriginal site’ within the meaning of s 5 of the AHA, which would undoubtedly affect the likelihood of successful prosecution. Therefore, I do not consider that Mr Mavec’s evidence on this point supports any adverse finding about DIA’s administration and enforcement of the AHA, though it does suggest that the deterrent effect of the AHA may be somewhat limited as far as the lake is concerned. The fact that DIA has approached GLSC for further information indicates that it is taking steps to make an adequate assessment of the site. However, until that process is complete, from the evidence before me, it is unlikely that any disturbance to the lake will be prosecuted.

1. In support of the second contention, the native title party relies on communications between the Minister of Indigenous Affairs, Hon Peter Collier MLC, and Matt Eggleston, President of the Kalgoorlie-Boulder Branch of the Liberal Party of Western Australia and between Mr Collier and Mr Schwann obtained through freedom of information laws. Specifically, the native title party refers to a letter sent by Mr Collier on 24 April 2012 in response to Mr Eggleston’s inquiry about the status of the lake, in which the Minister advises that the lake ‘is not currently an Aboriginal heritage site as defined by the [AHA].’ The native title party argues that the letter demonstrates that DIA’s advice to those with interests in mining on Lake Yindarlgooda is that the lake will not be protected under the AHA until DIA’s assessment is complete (NTP Contentions re AHA at [10]).

2. The AHA protects all Aboriginal sites, whether on the Register or not. However, the Minister’s letter appears to give the impression that the AHA does not apply to a site until it is registered. Although that view is inaccurate, I do not consider the letter to be typical of the information provided by the Government party to the mining industry and other stakeholders. For example, the Guidelines for Consultation with Indigenous People by Mineral Explorers provided to applicants for prospecting and exploration licences by the Department of Mines and Petroleum (and discussed by the Tribunal in Champion v Western Australia [2005] 190 FLR 362 (‘Champion’) at [70]-[71]) set out in full the definition of ‘Aboriginal site’ under s 5 of the AHA and make no reference to any requirement that a site be listed on the Register. The Minister’s letter to Mr Schwann on 16 May 2012 does not mention the status of Lake Yindarlgooda. Rather, the letter states that ‘[s]ection 5(b) of the AHA refers to the Act applying to any sacred, ritual or ceremonial site of importance and special significance to persons of Aboriginal descent.’ The letter also refers to the importance of consulting with the relevant Aboriginal people, without which ‘it will be difficult to conclude with certainty that all potential sacred, ritual or ceremonial sites have been located.’ In light of these considerations, I do not find that the evidence provided by the native title party supports the conclusion that the information provided to stakeholders by the Government party about the AHA has reduced the effectiveness of the site protective regime or increase the likelihood of interference with sites of particular significance.

Community or social activities – s 237(a)

1. 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].

2. In Pirkoff, I concluded (at [36]) that the evidence adduced by the native title party in that matter did not provide any basis for suggesting that there are significant social or community activities carried out by the native title party in or within the vicinity of the prospecting licence and the licence was therefore unlikely to directly interfere with the exercise of the community or social activities of the native title party.  In Aruma Resources, I considered additional evidence provided by Thelma O’Loughlin and reached the same conclusion.  While the Tribunal is not bound by previous determinations, it is entitled to have regard to those determinations and give weight to the findings made, though it may only do so having due regard to the evidence before it (see ASJ Resources at [12], [14]). Although the native title party has provided additional evidence in this matter, none of it relates to social or community activities carried on by the native title party in the proposed licences or the lake in general. Nor has the native title party made any specific contentions regarding these matters. Therefore, I adopt the findings I made in Pirkoff and Aruma Resources in relation to s 237(a).

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

1. 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. As discussed above at [13], there has been some dispute between parties as to the status of the lake under the AHA. The native title party claims that the site received a ‘positive assessment’ by the ACMC (NTP Contentions at [9]). The grantee party, on the other hand, alleges that the site had been entered on the Register but was subsequently removed because insufficient information had been provided to the ACMC (GP Contentions at [3]). The email sent by Mr Rayner to Mr Schwann and quoted above at [28] suggests that the ACMC has not yet made an assessment of the application. Whatever the current status of the application, it is incorrect to conclude, as the grantee party does, that the view formed by the ACMC regarding the adequacy of the information provided with the application ‘supports the fact that the Lake is not a recognised area of significance’ (GP Contentions at [3]). As I noted above at [30], 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.

2. In Pirkoff, I found (at [40]) that Lake Yindarlgooda is a site of particular significance to the native title party.  The Government party submits that I should not adopt that finding as the grantee party has filed evidence in this matter (namely, the affidavits of Mr Schwann and Mr Tucker) that was not available when it was made (GVP Response at [41]).  However, I had the benefit of that material when I considered the issue in Aruma Resources, as well as additional evidence provided by the native title party subsequent to the Government party’s submission and which is before me here, and reached the same conclusion.  Neither the Government party nor the Grantee party has advanced any novel arguments or offered a compelling reason as to why I should depart from the finding and reconsider the evidence.  However, it is necessary to deal briefly with some additional matters that have been raised by the grantee party subsequent to the Tribunal’s determination in Aruma Resources. 

3. First, Mr Schwann has now identified Mercy O’Loughlin, Mr Dimer and Mr Forrest as the members of the survey team who allegedly told him the story about the lake is ‘rubbish’.  In response, the native title party has provided the Tribunal with affidavits made by those participants, and each of them denies that the survey took place near the lake or that they said anything to that effect, although Mr Forrest concedes that he may have been misinterpreted (MO Aff at [4]; KD Aff at [4]-[6]; DF Aff at [4]-[6]).  Each of them acknowledges that the lake is a significant site, though they decline to speak about it in any detail (MO Aff at [6]; KD Aff at [7]; DF Aff at [7]-[8]). 

4. Second, the grantee party challenges the native title party’s evidence regarding the significance of the lake on the basis that another claim group whose claim boundaries extended onto the lake did not mention the lake’s significance during negotiations with the grantee party even though those negotiations concerned a tenement encroaching on the lake (GP Contentions at [11]). It should be noted that claim group to which the grantee party refers is the Widji People, whose claimant application has since been dismissed and removed from the Register of Native Title Claims. In any event, s 237(b) refers to ‘areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders ... of the native title in relation to the land or waters concerned.’ Therefore, it is inappropriate to infer from the fact that the lake may or may not be significant to the Widji People that it is not a site of particular significance to the native title party. Rather, the relevant question is whether the evidence establishes that the lake is a site of particular significance in accordance with the traditions of persons who are the holders of native title in relation to the land or waters concerned.

5. Third, the grantee party queries why the grant of M25/97 (located to the north of the proposed licences) and the construction of a tailings dam on that tenement were allowed to occur if the lake is considered to be of such significance (GP Reply at [16]). That query is answered by the fact that M25/97 was granted on 6 March 1992 and therefore prior to the commencement of the Act and the registration of the native title party’s claimant application, which means that the native title party at that time had no statutory right to be consulted about the grant of the tenement. The grantee party also queries why previous surveys commissioned in relation to M25/97 failed to identify the lake as a site of particular significance (GP Reply at [19]). The native title party contends that it is not aware of any ‘methodologically-sound’ heritage surveys having been conducted over the lake involving members of the claim group with authority to speak for the lake (NTP Contentions at [7]). A search of DIA’s Heritage Survey Database provided by the grantee party indicates that only three of the five surveys conducted over the mining lease involved consultation with Aboriginal people, one of which was conducted for archaeological purposes and another of which was commissioned in response to an application under s 18 of the AHA. The third survey involved a field and desktop survey of tenements involved in the Bulong Nickel Project on the western edge of the lake and concerned a fairly large area. While it is possible to speculate about whether the lake was in fact identified as an important site in the course of those surveys (and if not, why not), those questions cannot be answered conclusively without access to the reports. In the absence of the reports, it is unclear what the results of the surveys were, who was consulted or what methodology was followed. For all these reasons, I am not able to conclude from the mere fact that the surveys were conducted that the lake is not therefore a site of particular significance to the native title party.

6. Lastly, Mr Schwann claims to have seen research which suggests that the story about the lake is an ‘import’ from South Australia (PBS Aff at [21]).  Specifically, Mr Schwann appears to suggest that the words ‘tjukurrpa’ and ‘mamu’ are associated with the Spinifex people and are not part of the traditions of the native title party.  Several points can be made about this claim.  First, Mr Schwann has not disclosed any basis for concluding that he has appropriate qualifications to give evidence about the native title party’s traditions.  Second, the grantee party has not established any link between Mr Schwann’s research and the subject matter of this determination.  Third, the evidence in this matter, especially that of Dr Kruse, establishes that the term tjukurr or tjukurrpa is used throughout Western Desert Aboriginal languages and is a key concept in Western Desert Aboriginal law and custom (WHK Aff at [19]-[26]).  Therefore, I am not persuaded by Mr Schwann’s evidence on this issue.

7. Having dealt with these matters, I am satisfied that it is appropriate to adopt the findings I made in Pirkoff and Aruma Resources regarding the lake’s significance to the native title party. However, I am nevertheless required to reach a view as to the likelihood of interference with the lake if the proposed licences were granted. That requires an examination of the evidence present in this matter. The Government party contends that interference is not likely to result from the grant of the proposed licences, and makes several submissions in support of that contention (GVP Reply at [75]). First, the Government party submits that, given the size of proposed licences compared with the lake, any interference would not be significant. Second, the Government party submits that 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 or would otherwise be insignificant in that context. Third, the endorsements and conditions which the Government party proposes to place on the proposed licences are intended to prevent any major disturbance or damage to sites or places of significance. Fourth, the Government party submits that the AHA (and ss 5, 17 and 18 in particular) is likely to prevent interference with any areas or sites of ‘particular significance’ to the native title holders. Fifth, the grantee party has indicated its willingness to enter into an RSHA-type agreement with the native title party, which demonstrates its willingness to consult with the native title party and avoid any activities likely to interfere with the activities of the native title party. Finally, the Government party submits that the grantee party has indicated that it will commission heritage surveys prior to conducting ground disturbing activities on the lake and will comply with all relevant legal obligations.

8. It is certainly the case that the proposed licences only affect a small portion of the lake.  However, that does not necessarily mean that any interference resulting from the grant of the proposed licences will not be significant, especially when viewed in the context of the laws and customs of the native title party.  Whether the proposed licences are likely to interfere with the lake will depend on the nature of the site, the nature of the potential interference and the laws and traditions of the native title party: Silver at [88]. It is relevant here that Mr Sinclair deposes that the whole lake is ‘ngulu’ (dangerous) (DSS Aff 1, at [14]) and that ‘[t]he Mammu Tjukurrpa is all over Lake Yindarlgooda – on the lake, on the sand dunes, on the islands’ (DSS Aff 2, at [4]).  Mr Sinclair states that, without speaking with the right people, even entering the lake ‘would mess with the Tjukurrpa’ (DSS Aff 2, at [7]).  Mr Sinclair also states that, though prospectors ‘don’t always do something as major as drilling,’ they still need to speak with the proper people so that they ‘can tell them what areas are okay’ (DSS Aff 2, at [7]).  These statements indicate that prospecting is likely to interfere with the lake, even though its impact is less extensive than what would be permitted under an exploration licence.  In this respect, I note that Pirkoff also concerned a prospecting licence.

1. I accept the Government party’s argument that the likelihood of interference should be considered in the context of the previous and continuous use of the area, subject to the observation I made in Aruma Resources at [64] that evidence of prior and current exploration and mining tenure does not necessarily mean that disturbance has occurred.  The evidence in Aruma Resources did establish that significant exploration activity, including drilling, had been carried out on the surface of, and in areas immediately adjacent to, the lake and the grantee party here provides further material concerning the prior use of the lake.  Of particular relevance in this regard are the annual reports for E25/78, which, when active, entirely covered the area now subject to P25/2216.  Those reports indicate that ground-disturbing activities, including soil sampling and rotary air blast (RAB), aircore, reverse circulation (RC) and diamond drilling, were conducted over the exploration licence between 1993 and 1996 and between 1998 and 1999. 

2. The native title party contends that there is no overlap between E25/78 and P25/2216, referring to Tribunal mapping (NTP Further Reply at [3b]).  Although it is apparent from the Tribunal’s geospatial information that no such overlap exists, Tengraph documentation indicates that P25/2216 does in fact encroach on the area previously subject to E25/78.  Whatever the degree of overlap, the native title party nevertheless argues that there is nothing to suggest that work done on E25/78 occurred in the area of P25/2216.  It is unclear from the documents provided by the grantee party whether any work was actually carried out in the area now subject to P25/2216, though given the extent of activities conducted on E25/78, it is reasonable to infer that ground-disturbing activities were carried out in the area.  That being said, it is difficult to determine the extent to which those activities took place on P25/2216.  What the annual reports for E25/78 do show is the extent of works carried out on the lake in general.  For example, in the year ending 1 October 1996, a total of 272 holes were drilled.  The annual report for the year ending 13 October 1994, the only year for which the full report is provided, shows that $128,248 was expended on a total of 80 drill holes.  These reports indicate that, in some areas of the lake, there has been extensive disturbance to the surface of the lake.  Nevertheless, in view of the evidence adduced by the native title party, I am not satisfied that activity on the lake has reached a level where it has begun to undermine the spiritual integrity of the lake.  The question to be determined here is whether the grant of the proposed licences is likely to interfere with a site of particular significance to the native title party.  The previous and continuing use of the areas which are now the subject of the proposed licences is relevant to that question.  However, the evidence of prior disturbance to those underlying areas is insufficient to give rise to the conclusion that the likely interference resulting from the proposed licences will be no more significant than previous and continuing use.

3. The Government party argues that the proposed endorsements and conditions, together with the site protective provisions of the AHA, are likely to prevent any interference with sites of particular significance to the native title party. In past decisions, the Tribunal has found that the AHA is sufficient to ensure that interference with such sites is unlikely. However, each matter must be considered on its own facts. The Tribunal must consider, based on the facts of a particular case 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 that are found to exist (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). In the present matter, it is necessary to bear in mind that DIA has indicated that it will not pursue any prosecutions in relation to Lake Yindarlgooda until it is satisfied that there is sufficient information to demonstrate that the lake is an ‘Aboriginal site’ within the meaning of s 5 of the AHA. Although DIA are currently investigating the site, it is possible that, if the proposed licences were granted, there may be a period of time in which the AHA would not be enforced in respect of any disturbance to the lake. In this context, it is also necessary to consider the nature of the site itself. The proposed licences are entirely within the area of the lake’s surface. Therefore, it may be difficult for the grantee party to avoid interfering with the lake without consulting with the native title party. The native title party submits that, given the proposed licences are entirely within the lake, there is an onus on the grantee party to demonstrate how it would avoid interfering with the lake. To the extent that the term ‘onus’ implies an evidential burden which the grantee party must discharge, the native title party’s submission is not correct. However, the Tribunal has recognised that there may be circumstances in which, in the absence of evidence from the grantee party regarding its proposed intentions with respect to the protection of sites of significance, it is open for the Tribunal to conclude that there is a real risk of interference, including inadvertent interference, with those sites: Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 at [42]-[43].

4. It is submissions, the grantee party has said that it undertakes to comply with the ‘relevant statutes, protocols, codes of practices (including those relating to prospecting upon mineral titles), conditions of the grant of the Licence, and other directions and requirements of Government and other relevant authorities in the prospect of the [proposed licences]’ (GP Contentions, at [13]). The grantee party also submits that it acknowledges its responsibilities under the AHA and ‘undertakes to commission a heritage survey of the area of the [proposed licences] prior to the conducting of ground-disturbing prospecting upon the [proposed licences], if deemed necessary’ (GP Contentions, at [13]). It also submits that disturbance will be ‘kept to a minimum’ (GP Contentions, at [15]). As I noted in Aruma Resources (at [65]), these undertakings require no greater commitment than compliance with the AHA and the terms of the RSHA. Nor do they give an indication of the kinds of activities the grantee party intends to carry out on the proposed licences, nor any specific proposals for avoiding interference with the lake. Despite the Tribunal’s previous findings regarding the lake’s significance to the native title party, the grantee party continues to exhibit a dismissive attitude towards its concerns. In this respect, I do not attach much weight to the fact that Copley did not respond to GLSC’s letter of 6 September 2011 given that Mr Mavec explicitly states that the claimants are opposed to mining activities taking place on the lake. However, statements made by the grantee party in the course of this inquiry demonstrate that the grantee party is not prepared to consult with the native title party about its proposed activities. For example, in response to the native title party’s submission that the grantee party should demonstrate how it intends to avoid interference with the site, the grantee party states that ‘works planned for these licences is neither the business nor the right of the Native Title party or its claimants to decide’ (GP Reply at [16]). The grantee party also appears to attach excessive significance to the fact that the lake is not a registered site, which suggests that it is not entirely cognisant of its obligations under the AHA, which protects all Aboriginal sites, whether registered or not. As the grantee party states in its reply to the native title party’s contentions, ‘this Mythological site is not registered with the DIA and therefore, should not affect the grant of these Prospecting Licences’ (GP Reply at [20]). In light of these statements and the discordant relationship between Aruma and GLSC, documented in Aruma Resources and still apparent in exchanges between the native title party and the grantee party throughout this inquiry, it is by no means certain that the grantee party will engage in the kinds of discussions necessary to avoid interference with the lake.

5. As I observed in Aruma Resources (at [65]), there is no suggestion that the grantee party has any intention other than to comply with its legal obligations.  However, in the circumstances, it will be difficult for the grantee party to comply with the relevant laws and regulations unless required to consult with the native title party and its representatives.  Though it is possible that further consultations may not result in an agreement between the parties as to the conditions on which the proposed licences could be granted, that is not relevant to the present inquiry.  Consequently, I find that there is a real risk of interference with a site of particular significance to the native title party.        

Major disturbance to land or 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 v Oriole Resources Pty Ltd (2005) 146 FCR 576 at [41]-[57]).

2. The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration or prospecting will take place as well as the remedial regulatory regime in place.  It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration or prospecting activities would result in any major disturbance to land or waters.  In most cases, the Tribunal has held that prospecting and exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion at [74]-[79] and the cases cited therein). The native title party has not made any contention in relation to s 237(c), and the evidence does not establish that the grant of the proposed licences will result in a major disturbance to land or create rights which will do so.

Determination

1. The determination of the Tribunal is that the grant of prospecting licences P25/2215 and P25/2216 to Copley Pty Ltd are not acts attracting the expedited procedure.

Daniel O’Dea
Member
22 October 2012