Cyril Gordon and Others on behalf of Kariyarra/Western Australia/Bradford John Young & Julie Lynne Young
[2010] NNTTA 45
•31 March 2010
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Gordon and Others on behalf of Kariyarra/Western Australia/Bradford John Young & Julie Lynne Young, [2010] NNTTA 45 (31 March 2010)
Application No: WO09/554
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Cyril Gordon & Others on behalf of Kariyarra – (WC99/3) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Bradford John Young and Julie Lynne Young (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 31 March 2010
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109, 151(2), 237
Mining Act 1978 (WA), ss 63,
Aboriginal Heritage Act 1972 (WA)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Representatives of the Ms Lea Notte, Pilbara Native Title Service
native title party: Mr Colin McKellar, Pilbara Native Title Service
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mining and Petroleum
Representative of the
grantee party: Mr Ken Green, Green Legal
REASONS FOR DETERMINATION
On 8 April 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E45/3239 (‘the proposed licence’) to Bradford John Young and Julie Lynne Young (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The area, location and extent to which the proposed licence is overlapped by the registered native title claim of the Kariyarra People (WC99/3 – registered from 22 April 1999) are as follows:
E45/3239, comprising an area of 25.67 square kilometres located 13 kilometres south of Port Hedland in the Town of Port Hedland – overlap 100 per cent.
No other native title claims overlap the proposed licence.
On 7 August 2009, Cyril Gordon & Others on behalf of Kariyarra (WC99/3) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
In accordance with standard practice, the Tribunal gave directions to 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 (10 August 2009), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
The Government party lodged its contentions and evidence on 16 and 27 November 2009. On 8 December 2009, following a number of conferences and requests by the native title party to extend the time required for compliance with directions in an attempt to negotiate a heritage and land access agreement, to which the other parties consented, I extended the dates for compliance for a further ten weeks. The native title party believed an in-principle agreement existed and that they were waiting on feedback from the grantee party. The existence of an in-principle agreement was disputed by the grantee party. The native title party had partially complied on 7 December 2009 and provided further and updated evidence and contentions on 15 February 2010. The contentions and evidence of the grantee party were lodged on 26 February 2010 after an extension of time was given to it.
The parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a hearing) and I am satisfied that the objection can be adequately determined in this way (s 151(2) NTA).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at 439-449 [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 449-454 [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 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DMP, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [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] FCAFC 23; (2008) 167 FCR 340).
Evidence in relation to the proposed act
Government party documents establishes the following notable underlying land tenure on the proposed licence.
Indigenous Owned Lease 3114/860 (PIPPINGARRA) (64.4 per cent overlap);
Townsite Boundary (Port Hedland) (15.5 per cent overlap);
Vacant Crown land (8.6 per cent overlap);
General Lease (4.1 per cent overlap); and
Road Reserves (less than 0.1 per cent overlap).
A map prepared by the Tribunal’s Geospatial section shows that there are four Aboriginal communities surrounding the proposed licence. Those communities are:
Kaparrkurra – located less than 1 kilometre south of the proposed licence;
Pippingarra – located approximately 5 kilometres east south east of bottom right corner of the proposed licence area;
Tjalka Wara – located approximately 5.5 kilometres east south east of the top right corner of the proposed licence area; and
Drovers Rest – located approximately 3 kilometres north of the top right corner of the proposed licence area.
Department of Indigenous Affairs (‘DIA’) documents provided by the Government party reveal no registered sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the proposed licence area.
Government party documents indicate four live miscellaneous licences, two live mining leases, four pending miscellaneous licences and one pending mining lease overlapping E45/3239. The mining leases and three of the miscellaneous licences are held or applied for by the grantee party. There was previous mineral exploration and mining activity in the area of the proposed licence between 1958 and 2007. There is current mining activity.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4) and 19 other conditions which will regulate the exploration activities.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed:
1. The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and
2. The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Evidence provided by the native title party
The native title party has provided the following documents:
A statement of contentions dated 15 February 2010 (which replaced and supplemented the previously filed statement of contentions of 8 December 2009).
A photocopy of the 2006 Census QuickStats: South Hedland obtained from the Australian Bureau of Statistics.
A statement from Ms Kerry Robinson, the signing of which was witnessed by Mr Colin McKellar, solicitor for the native title party, on 7 December 2009.
The statement of Ms Robinson is as follows:
‘My name is Kerry Robinson. I am an Applicant for the Kariyarra Claim. My skin group is Karimarra. I speak for the Marapikurrinya clan estate which is part of the Kariyarra Claim. The Exploration Licence 45/3239 (“the Exploration Licence”) is within the Marapikurrinya clan estate. I am concerned by the Exploration Licence because we have not been consulted.
The Exploration Licence covers part of South Hedland. South Hedland is home to many Kariyarra people, and there are Kariyarra people living within the area covered by the Exploration Licence. I and other Kariyarra people frequently go out to the area covered by the Exploration Licence and conduct community and social activities. These activities will be affected by any exploration done on the Exploration Licence.
Bradford John Young, one of the holders of the Exploration Licence holds a number of Mining Leases within Kariyarra country, and within the area of the Exploration Licence. While there has been mining on these licences for many years, there have been no heritage surveys over the areas. I am concerned that there may have been aboriginal sites on the area that may have been destroyed. I am concerned that any exploration done within the area of the Exploration Licence may be done without a survey, and may destroy aboriginal sites.’
In the recent case of Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner (at [18]-[28]) the Tribunal summarised its practice with respect to statements not in affidavit form. The Tribunal is not bound by the rules of evidence (s 109(3)). Applying these principles to the present case I am satisfied that the statement is admissible. However, the weight I can give to it is another matter as the evidence is of a limited and general nature. I also need to consider carefully what appear to be adverse comments about the grantee party’s behaviour in relation to Aboriginal sites.
Evidence provided by the grantee party
The grantee party has provided the following documents:
A statement of contentions dated 26 February 2010.
The affidavit of Julie Lynne Young sworn 25 February 2010 including attachments.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of E45/3239 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] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). 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 451 [26]). The assessment is also contextual, taking 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 451-452 [27]).
The evidence establishes that some mining and exploration activity has occurred in the area of E45/3239 and vicinity over the years up to and including the present day. There are sand mining operations conducted by the grantee party on an existing Mining Lease in the proposed licence area. In addition, there is a Shire Landfill area, part of South Hedland township (which is a suburb of Port Hedland), a main road through the area and railway line and siding. I am satisfied that these activities in an area close to Port Hedland will have interfered with the native title party’s traditional community or social activities to a considerable extent.
The native title party has not provided any evidence to suggest the type of community and social activities that are currently conducted over the area of E45/3239 by the native title party nor is there any reference to the frequency with which those activities might occur. Ms Robinson merely says that she and other Kariyarra people “...frequently go out to the area covered by the Exploration Licence and conduct community and social activities” (paragraph 2 of the Robinson Statement).
There are four Aboriginal communities to the south, south east and north of the proposed licence area, and the proposed licence lies directly between three of those four Aboriginal communities. However, no evidence has been provided by the native title party on whether the grant of the proposed licence will affect the traditional community or social activities of those communities even accepting that some of the persons living there are part of the native title party claim group.
The native title party has provided a copy of a QuickStats analysis from the Australian Bureau of Statistics for South Hedland, part of which is within the proposed licence area. The QuickStats provide a breakdown of statistics in relation to topics like the nationality of persons living in South Hedland, the number of indigenous people, marital status and labour force from the 2006 Census taken on 8 August 2006.
The native title party says that this evidence shows that 1192 Aboriginal people live in South Hedland and assert that a number of these are Kariyarra and part of the claim group. The contentions then say that the proposed licence area outside the residential area of South Hedland is frequently visited by Kariyarra people for the purpose of carrying on community or social activities, the evidence for which is said to be paragraph 2 of Ms Robinson’s statement. While I can accept that a number of Kariyarra people live in South Hedland, there is no cogent evidence of the extent, frequency or nature (traditional or otherwise) of the asserted community or social activities. I accept the grantee party’s evidence (Young affidavit, para 13) that there is no intention to explore in the township area itself.
The size of E45/3239 is 25.67 square kilometres and the area of the Kariyarra claim is approximately 16,686.024 square kilometres. Consistent with previous Tribunal decisions, I find that the size of the proposed licence area in the context of the much larger native title claim area also make it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out on the proposed licence area).
Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows no registered sites within E45/3239, but this does not mean there may not be other sites or areas of particular significance to the native title party over E45/3239 or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Neither the contentions of the native title party nor Ms Robinson’s evidence provide any evidence of Aboriginal sites located within the proposed licence area or any evidence of sites of particular significance to the native title party in accordance with their traditions. Evidence from DIA’s Aboriginal Heritage Inquiry System shows that there have been six site surveys conducted over parts of the proposed licence area on previous occasions in relation to various projects. As indicated, there is no registered site in this area.
The native title party contentions and paragraph 3 of Ms Robinson’s statement allege that the grantee party has conducted mining activities on other tenements they hold in the vicinity of the proposed licence which may have destroyed Aboriginal sites within those tenements. No cogent evidence has been provided by the native title party to support this contention. Further, the allegation against Mr Young is specifically refuted on oath by the grantee party (paragraphs 20-27 of the Young Affidavit). As there is no evidence from the native title party (or otherwise) as to the existence of any Aboriginal sites within the proposed licence area, I cannot make a positive finding that there exist any sites of particular significance to the native title party within the proposed licence area. I can see no reason why the protective regimes under the AHA and the presumption of regularity should not be sufficient to ensure that there is unlikely to be interference with any sites of particular significance which may exist.
I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA and the fact that they have signed a statutory declaration saying they have executed and forwarded a copy of the Regional Standard Heritage Agreement (‘RSHA’) to the native title party’s representatives reveals an awareness of their obligations in this respect. The grantee party has affirmed that it understands its obligations under the AHA and will comply with it (Young affidavit paras 24-25). I have no difficulty in accepting that the grantee party will act lawfully and in accordance with the AHA.
The Government party will also place a condition on the grant that will require the grantee party to execute a RSHA in favour of Kariyarra People within thirty days of a request by the native title party, which must be made within ninety days of the grant. This provides the option for the native title party to ensure that a heritage survey, particularly in relation to the proposed licence area, is carried out.
I find that there is not likely to be a real risk of interference with any sites of particular significance to the native title party in the proposed licence area.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place 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 (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [74]-[79] and the cases cited therein).
In this matter, the proposed licence comes within the townsite of Port Hedland. No contention is made by the native title party in relation to s 237(c) and there is no evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely. The area of E45/3239 has been the subject of past and present exploration and mining and other development activities over a long period. The presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4) as well as extensive other conditions relating to other factors in the proposed licence area. It is also relevant that no exploration activities will be conducted in the Port Hedland residential town area. I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E45/3239 to Bradford John Young and Julie Lynne Young is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
31 March 2010
1
10
0