Cyril Gordon and Others on behalf of Kariyarra/Western Australia/Chalice Gold Mines Ltd
[2009] NNTTA 89
•12 August 2009
NATIONAL NATIVE TITLE TRIBUNAL
Cyril Gordon and Others on behalf of Kariyarra/Western Australia/Chalice Gold Mines Ltd, [2009] NNTTA 89 (12 August 2009)
Application Nos: WO07/319 (E47/1748) and WO07/320 (E47/1749)
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Cyril Gordon & Others on behalf of Kariyarra – (WC99/3) (native title party)
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The State of Western Australia (Government party)
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Chalice Gold Mines Ltd (formerly Uranium Equities Ltd) (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE (WO07/319)
DISMISSAL OF OBJECTION APPLICATION (WO07/320)
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 12 August 2009
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, 151(2), 237
Mining Act 1978 (WA), ss 20, 63, 67, 120
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Aboriginal Affairs Planning Authority 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
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
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
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso
Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 and WO05/48, [2006] NNTTA 74 (13 June 2006), Hon C J Sumner
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, NNTT WO06/503, WO06/504, WO06/505, WO06/506 and WO06/507, [2007] NNTTA 82 (17 September 2007), Hon C J Sumner
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Representatives of the Mr Rainer Mathews, 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 Industry and Resources
Representative of the
grantee party: Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 17 January 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the NTA’) of its intention to grant exploration licences E47/1748 and E47/1749 (‘the proposed licences’) to Uranium Equities Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, are ones which can be done without the normal negotiations required by s 31 of the Act).
On 28 September 2007, the Tribunal received a letter from the Department of Industry and Resources (‘DoIR’) outlining the relationship between Uranium Equities Ltd and Chalice Gold Mines Ltd (‘Chalice’). The proposed licences applied for by Uranium Equities Ltd are reversions of applications for mining leases, M47/994 to M47/1025 inclusive, which in themselves are conversions of two active exploration licences, E47/1164 and E47/1165. The latter two exploration licences were transferred from Uranium Equities Ltd to Chalice in April 2007, and as such, the rights conferred under sections 67(3) and 67(4) of the Mining Act 1978 were transferred to Chalice. As a consequence, the mining leases have become applications of Chalice and by virtue of s 120AA of the Mining Act, the proposed licences are also deemed to be applications by Chalice. In short, although at the time of the s 29 notice the grantee party was Uranium Equities Ltd it is now Chalice as a result of the transfer of the underlying exploration licences E47/1164 and E47/1165 from Uranium Equities Ltd to Chalice in April 2007. For convenience reference to the grantee party in these reasons includes both Chalice Gold Mines Ltd and Uranium Equities Ltd.
The area, location and extent to which each of the proposed licences are overlapped by the registered native title claim of the Kariyarra People (WC99/3 – registered from 22 April 1999) are as follows:
E47/1748, comprising an area of 223.74 square kilometres located 60 kilometres south-easterly of Roebourne in the Town of Port Hedland and the Shire of Roebourne – overlap 100 per cent; and
E47/1749, comprising an area of 22.34 square kilometres located 66 kilometres south-easterly of Roebourne in the Town of Port Hedland – overlap 100 per cent.
No other native title claims overlap the proposed licences.
On 7 May 2007, Cyril Gordon & Others on behalf of Kariyarra (WC99/3) (‘the native title party’) made expedited procedure objection applications to the Tribunal in respect of the proposed licences (WO07/319 in relation to E47/1748 and WO07/320 in relation to E47/1749).
In accordance with standard practice in expedited procedure objection matters, 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 (17 May 2007), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
On 24 April 2009, following a number of conferences and multiple requests to extend the time required for compliance with directions in an attempt to negotiate a heritage and land access agreement which were granted with the consent of the parties, I extended directions for a further month to allow compliance with directions for an inquiry to determine whether or not the expedited procedure is attracted. The delays in processing this matter (which would normally be regarded as unacceptable by the Tribunal) came about because the Tribunal was continually assured that agreement between the native title party and grantee party was achievable even though complicated by the need to also reach agreement with the Mugarinya Community Association Incorporated, the lessee of Aboriginal Reserve Land which covers most of the area of the proposed licences.
The Government party lodged its contentions and evidence on 2 and 17 April 2009 and the native title party on 26 May 2009. Following a further extension of time, contentions and evidence of the grantee party were lodged on 5 June 2009.
The parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a further hearing) and I am satisfied that the objection can be adequately determined in this way (s 151(2) NTA).
On 24 July 2009 the grantee party withdrew its application for E47/1749 (WO07/320) and as a consequence objection application WO07/320 is dismissed pursuant to s 148(a) of the 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’), formerly DoIR. Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR, 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 documentation establishes the following notable underlying land tenure on the proposed licence E47/1748 (WO07/319).
Indee pastoral lease 3114/1197 (16.9 per cent overlap);
Mallina pastoral lease 3114/1209 (1.8 per cent overlap);
Water Corporation Crown Reserve 12247 (0.2 per cent overlap); and
Road Reserve – Mallina Yandeyarra (less than 0.1 per cent overlap).
In addition, E47/1748 is overlapped at 81.1 per cent by Crown Reserve 31427, which is Aboriginal Reserve Land pursuant to Part III of the Aboriginal Affairs Planning Authority Act 1972, vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal inhabitants. The Reserve is leased to the Mugarinya Community Association Incorporated.
Documentation provided by the Government party notes that Yandeyarra Aboriginal Community is located approximately 20 kilometres south of the area of E47/1748 at its nearest point.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals one site registered under the Aboriginal Heritage Act 1972 (WA) partially overlapping E47/1748 – Yule River (Kakurka) (stored data, open access, no restrictions).
Government party documentation indicates two live exploration licences and 24 pending mining leases overlapping E47/1748. All tenements are held or applied for by the grantee party. A further active prospecting licence slightly overlaps E47/1748. There was previous mineral exploration and mining activity in the area of the proposed licences between 1959 and 2009.
One previously granted tenement, E47/1132 (WO02/541), and one subsequently withdrawn tenement, E47/1010 (WO00/267), which partially overlap E47/1748 were the subject of objections by the native title party. In relation to WO02/541, agreement was reached and the objection withdrawn. The remaining objection, WO00/267, was finalised through consent determination that the expedited procedure does not apply.
The grant of the proposed licence E47/1748 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). An additional condition requires that the pastoral lessee is notified of the grant of the licence and of certain exploration activities (conditions 5-6).
In addition, the grant of the proposed licence E47/1748 will be subject to a condition requiring permission from the Minister responsible for the Mining Act 1978 prior to mining on Use and Benefit of Aborigines Reserve 31427 and Water Act Reserve 12247 (condition 7).
The grant of E47/1748 will also be subject to conditions restricting mining activities and interference with Geodetic Survey Station SSM – Langenbeck (condition 8).
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:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and
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.
The grantee party provided a Statement of Contentions on 5 June 2009, signed by Shannon McMahon of McMahon Mining Title Services Pty Ltd on behalf of his clients. The grantee party sets out its intentions to continue negotiations with the Aboriginal Reserve Land holders that have been ongoing since mid-2006. A letter signed by Roger Thompson, Chief Geologist of the grantee party confirms that no work is planned to be conducted on the portion of E47/1748 outside of the Reserve until access is granted to the Reserve.
Evidence provided by the native title party
The native title party has provided the following documentation:
A statement of contentions dated 26 May 2009.
A photocopy of chapter fourteen, ‘Yandeyarra’, of a publication entitled Kangkushot: The Life of Nyamal Lawman Peter Coppin, by Jolly Read and Peter Coppin (published 1999). The chapter outlines the history of the Yandeyarra community and Reserve.
Correspondence from Mr Rainer Mathews dated 21 April 2009, providing detailed background information relating to a moratorium on the grant of underlying tenements and their purported relationship with the proposed licences the subject of these proceedings.
Although the contentions of the native title party say that a statement by Kariyarra elder Donny Wilson is also attached, no such statement has been provided by the native title party. As noted in para [8] above, the native title party has advised that it agreed to the Tribunal proceeding on the basis of the papers currently before it.
The relevance of the moratorium
The detailed information about the history of the underlying tenements was provided on the basis that the native title party believes that the history has relevance to the current proceedings. Briefly summarised, the situation is as follows:
Reserve 31427 was formally the subject of a moratorium or extraordinary restriction on mining imposed by the Government of Western Australia in the early 1980s. The proposed licences largely fall within the area of this Reserve;
The moratorium was lifted on 13 July 1998 with the consent of Mugarinya Community Association Incorporated. This consent was given on the basis that (letters dated 25 September 1997 from L C Ranford, Acting Director General of DME to Donny Wilson, Chairperson of the Mugarinya Community):
‘As part of the processing of the applications DME [Department of Minerals and Energy] will initiate procedures in accordance with the Native Title Act in respect to existing titles so that the right to negotiate process can be undertaken as part of the reserve access negotiations…’
Proposed licence E47/1748 pertains to an area covered at the time the moratorium was lifted by applications for tenements E47/747 and E47/748.
The application for E47/747 was withdrawn and replaced by two further applications, E47/1164 and E47/1165, previously referred to in para [2] above.
These latter tenements, and tenement application E47/755, were progressed through the expedited procedure and subsequently granted with what the native title party says is the apparent disregard to the undertaking by the Government that existing titles be progressed through the right to negotiate.
As noted at para [2] above, applications were subsequently made to convert E47/1164 and E47/1165 to mining leases and these will now revert to the proposed licence E47/1748.
The native title party submits that the undertaking given when the moratorium was lifted to progress existing tenement applications through the right to negotiate should have applied to E47/1164 and E47/1165, and should now also apply to the proposed licence E47/1748 as this tenement pertains to rights granted under the former tenements E47/1164 and E47/1165.
The Government party’s position is that following the lifting of the moratorium the grant of mineral tenements over the Reserve area would be subject to the normal procedures under the Mining Act 1978, Aboriginal Affairs Planning Authority Act 1972 and the Native Title Act1993 (Cth). The normal procedures under the right to negotiate provisions of the NTA includes applying the expedited procedure to exploration and prospecting tenements. The Government party disputes that there was ever an undertaking not to apply the expedited procedure to areas previously the subject of the moratorium. The reference to ‘the right to negotiate process’ in the letter of 25 September 1997 from Mr Ranford to Mr Wilson was to the whole of the right to negotiate provisions including where appropriate the expedited procedure according to the Government party.
In my view the case put by the native title party on this point is not made out in the absence of further evidence supporting its interpretation of the undertaking given on the lifting of the moratorium. Mr Mathews for the native title party has further submitted that the undertaking was made prior to the date of the 1998 amendments to the NTA, and therefore at a time when it would be reasonable to assume that the expedited procedure would not apply to the tenement applications (see Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391). He submits that given the legislative environment at the time at which the undertaking was made it is reasonable to interpret it as an undertaking that the normal right to negotiate process, as opposed to the expedited procedure, would apply to the relevant tenement. Mr Mathews relies on the decision of the Full Federal Court in Dann to support his argument because following that decision the expedited procedure was determined on whether the interference and disturbance referred to in s 237 would possibly occur on a worst case scenario and not on what was likely to occur (i.e. the predictive assessment approach). However, the interpretation of the NTA in Dann did not mean that the expedited procedure was not attracted in all matters and the Government party’s approach of asserting the expedited procedure in its s 29 notice did not change. There is insufficient evidence to reach the conclusions argued for by the native title party, namely that ‘the right to negotiate process’ in Mr Ranford’s letter was meant to exclude use of the expedited procedure.
The procedures under the NTA relating to the right to negotiate include the use of the expedited procedure. On the face of the correspondence from Mr Ranford, there is nothing to suggest that the undertaking meant that all relevant tenement applications (including exploration and prospecting licences) would be notified under s 29 without an assertion that the expedited procedure was attracted.
There is a further reason for rejecting the native title party’s submission. The native title party’s evidence indicates that tenement application E47/747, which existed at the time of the moratorium, was withdrawn in April 2002 some three and a half years after the lifting of the moratorium. It cannot in my view be said that the conditions enabling the moratorium to be lifted could be applicable to E47/1164 and E47/1165, or subsequent applications, even if the intention was indeed to ‘replace’ E47/747. They were not existing titles or existing applications for tenements at the time the undertaking was given.
Further, exploration licences 47/1164 and 47/1165 were granted for a term of five years in March 2003 apparently covering part of the area of E47/747 and in relation to which the expedited procedure was asserted without the point about the Government party’s undertaking being raised by the native title party. Similarly, in relation to the other tenement application existing at the time the moratorium was lifted (E45/755 lodged on 23 January 1995 which is covered by at least part of proposed licence E47/1749) the Government party sought the attraction of the expedited procedure without the native title party’s present point about the undertaking being raised. It is impossible in my view for either of the proposed licence applications to be regarded as ‘existing titles’ or existing tenement applications within the terms of the Government party’s undertaking of 25 September 1997.
A breach of an undertaking or agreement by the Government party has not been established in relation to the proposed licences.
Findings in relation to Aboriginal Reserve Land
Previous Tribunal findings have been that the regulatory regime applicable to Aboriginal Reserve Land is such that an exploration licence is unlikely to cause the interference or disturbance referred to in s 237 of the NTA (see Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, NNTT WO06/503, WO06/504, WO06/505, WO06/506 and WO06/507, [2007] NNTTA 82 (17 September 2007), Hon C J Sumner at [17]; Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) and cases cited therein at 259-260 [21]). Access to the Reserve area by the grantee party is only approved by the Minister for State Development once the Minister for Indigenous Affairs is satisfied that an adequate agreement has been entered into between the grantee party and relevant Aboriginal community. Where the relevant Aboriginal community is a native title party which has objected to the expedited procedure, it can safely be assumed that access is not likely to be granted for exploration unless the matters in s 237 are dealt with to the satisfaction of the objector. The contentions of the native title party establish that the relevant Aboriginal community, Mugarinya, consists of many members of the native title party. Furthermore, the grantee party says it is of the understanding that the native title party and Mugarinya have in place an agreement whereby the native title party will accept a similar agreement to that reached between the grantee party and the Mugarinya community. Although this understanding was also conveyed to the Tribunal on a number of occasions, Mr Mathews recently reported on 24 April 2009 that this is an understanding rather than a strictly legal agreement and cannot be confirmed. In any event, I infer from the contentions of the native title party that at least some Mugarinya community members are also members of the native title party and therefore consultation with the native title party must occur before permission to access the Reserve is approved. The likelihood of s 237 interference and disturbance occurring is remote in these circumstances and I find that the expedited procedure applies in this case in relation to the area of E47/1748 which is Aboriginal Reserve Land.
Had the entire area of land the subject of E47/1748 been within Reserve 31427, this finding would have been sufficient to dispose of the matter. However, as approximately 20 per cent of E47/1748 is pastoral leasehold, so I must now consider the substantive contentions and evidence relating to s 237.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of E47/1748 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 Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The evidence establishes that some exploration activity has occurred in the area of E47/1748 and vicinity over the years up to and including the present day. Current activity in the mineral resources sector is evidenced and the concerns of the native title party about previous activity are to some extent apparent from two objections lodged in relation to some of the tenements applied for in their claimed country. While it is possible based on the considerable number of titles granted between 1959 and 2007 that some interference with the native title party’s community or social activities may have occurred this is not an important factor in this case because of the paucity of evidence provided by the native title party.
The native title party’s contentions say the proposed licences cover the Yandeyarra community, also known as Mugarinya, and falls substantially within the Yandeyarra Reserve. The supporting evidence from the book by Jolly Read – Peter Coppin (see para [25] above) outlines that Yandeyarra was established in 1896, abandoned in the mid-1940s and gazetted as an Aboriginal Reserve in 1972. The evidence of the native title party focuses predominately on the historical activities of members of the native title party associated with life on a station, including mustering cattle, establishing the Yandeyarra homestead, putting young fellas through the Law and collecting bush foods and tucker. The native title party has not submitted any evidence to suggest that such activities are carried out by the native title party on a contemporary basis. Even if there was some suggestion that activities relating to station work and mustering are currently carried out by the native title party, I have previously found that business activities, including that related to pastoral work, does not constitute a social or community activity for the purposes of s 237(a), as it does not arise from, and is not related to, the claimed native title rights and interests (The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 and WO05/48, [2006] NNTTA 74 (13 June 2006) at [30]-[34] and cases cited therein).
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 E47/1748, nor is there any reference to the frequency of which those activities might occur. Similarly, the evidence does not provide any indication as to whether members of the native title party presently visit E47/1748 and what type of activities might be carried out as a result of such visitations.
The Aboriginal community of Yandeyarra (Mugarinya) is located approximately 20 kilometres south of E47/1748. The native title party contends that Yandeyarra is considered an important community for the native title party and that exploration over this area would cause significant disruption. No evidence has been provided by the native title party to support this contention. Furthermore, in the absence of supporting evidence, and given the distances between Yandeyarra and the proposed licence, I cannot find that exploration activities carried out over the area of the proposed licence E47/1478 will cause interference to the Yandeyarra community.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place as significant ground disturbing exploration will only occur at any one time over a small area. I also note that the grantee party currently has access to the entire area of E47/1748 through its active exploration licences, E47/1164 and E47/1165, which overlap the area of this proposed licence by a total of 100 per cent.
Government party documentation reveals that the size of E47/1748 is 223.74 square kilometres. The area of the Kariyarra claim is approximately 16,686.024 square kilometres, much larger than the area of E47/1748, thus making it less likely that exploration over E47/1748 will impact on any community and social activities, which I can infer are likely to be carried out over a broader area (Cheinmora at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso at [43]-[44]).
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 Aboriginal Heritage Act (‘AHA’) shows one open access site within E47/1748, but this does not mean there may not be other sites or areas of particular significance to the native title party over E47/1748 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, recently in 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.
The contentions of the native title party (para 4) state that there are many Kariyarra sites ‘located in and around the Mugarinya community including a highly significant Law Ground’ As identified above, the Mugarinya community is located some distance from E47/1748, making it unlikely that exploration activity will interfere with any sites located in and around the Mugarinya community. The native title party also contend that there ‘are a large number of other Kariyarra sites throughout the region’ (para 4). No evidence has been provided by the native title party to support this contention and while there is no burden of proof on the native title party, the Tribunal adopts a common sense approach to evidence. Where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when a common sense approach to the evidence is applied (Ward v Western Australia (1996) 69 FCR 208 at 217 and Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 at 13-14 [23]). There is very little evidence before the Tribunal that there are any areas or sites of particular significance to the native title party in accordance with their traditions over E47/1748. There is one registered site, classified as open access with no restrictions, being a river which overlaps E47/1748 to the east by less than one per cent. As there is no evidence about the registered site from the native title party, I cannot make a positive finding that it is a site of particular significance to the native title party. Its characteristics suggest that it is not of particular significance to the native title party, although the possibility remains that it is. In any event based on the limited evidence of sites 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 do 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 it has signed a statutory declaration saying it has executed and forwarded a copy of the Regional Standard Heritage Agreement (‘RSHA’) to the native title party’s representatives reveals an awareness of its obligations in this respect. The Government party has also placed a further condition that, if so requested by the native title party within ninety days of grant, the grantee party must execute a RSHA in its favour. I have no difficulty in accepting that the grantee party will act lawfully and in accordance with the AHA and I accept that heritage surveys can be conducted over the area by way of the RSHA if no alternative agreement is entered into.
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, 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 E47/1748 has been the subject of past and present exploration and mining activities over a long period and about which there have been no complaint; 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). I find that there is not likely to be major disturbance to land or waters in this case.
Another relevant factor to which I have had regard in assessing the likelihood or otherwise of the s 237 interference or disturbance is the evidence from Mr Roger Thompson, the grantee party’s Chief Geologist that no exploration will take place outside the Reserve until access is granted to the Reserve. There is no reason to dispute this evidence and the native title party has not sought to do so.
Determination in relation to WO07/319 (E47/1748)
The determination of the Tribunal is that the grant of exploration licence E47/1748 to Chalice Gold Mines Ltd is an act attracting the expedited procedure.
Decision to dismiss objection application WO07/320 (E47/1749)
Expedited procedure objection application WO07/320 is dismissed pursuant to s 148(a) of the Native Title Act1993 (Cth).
Hon C J Sumner
Deputy President
12 August 2009
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