Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants/Western Australia/Drill Gold Pty Ltd
[2010] NNTTA 169
•15 October 2010
NATIONAL NATIVE TITLE TRIBUNAL
Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants/Western Australia/Drill Gold Pty Ltd, [2010] NNTTA 169 (15 October 2010)
Application Nos: WO09/310, WO09/311, WO09/386, WO09/387, WO09/388
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants – (WC99/25) (native title party)
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The State of Western Australia (Government party)
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Drill Gold Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 15 October 2010
Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – 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 – unsigned/unsworn affidavits not accepted as evidence – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 24KA(2), 29, 31, 146, 148, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 24(7), 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Deputy President Sumner
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Solicitor for the
native title party: Ms Hema Hariharan, Kimberley Land Council
Representative of the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representatives of the Mr Greg Abbott, Department of Mines and Petroleum
Government party: Ms Claire Malavaux, Department of Mines and Petroleum
REASONS FOR DETERMINATION
On 14 January 2009 (in respect to exploration licences E04/1663 and E04/1778) and on 11 February 2009 (in respect to exploration licences E04/1839, E04/1840 and E04/1841), the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act/NTA) of its intention to grant the exploration licences specified (the proposed licences) to Drill Gold Pty Ltd (the grantee party) and included in the notices 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).
Each of the proposed licences is overlapped by the Nyikina and Mangala registered native title claim (WC99/25 – registered from 28 September 1999). Details of the area, location and extent of such overlapping are as follows:
E04/1663, comprising an area of 162.85 square kilometres located 60 kilometres south of Derby in the Shire of Derby-West Kimberley – overlap of 100 per cent;
E04/1778, comprising an area of 228.3 square kilometres located 72 kilometres south east of Derby in the Shire of Derby-West Kimberley – overlap of 37.97 per cent;
E04/1839, comprising an area of 655.47 square kilometres located 101 kilometres south of Derby in the Shire of Broome/Derby-West Kimberley – overlap of 83.84 per cent;
E04/1840, comprising an area of 78.15 square kilometres located 60 kilometres south of Derby in the Shire of Derby-West Kimberley – overlap of 100 per cent; and
E04/1841, comprising an area of 19.5 square kilometres located 101 kilometres south of Derby in the Shire of Derby-West Kimberley – overlap of 100 per cent.
No other native title claims overlap the proposed licences.
On 14 May 2009, Daisy Lungunan, John Watson & Others on behalf of the Nyikina & Mangala Native Title Claimants (WC99/25), made an expedited procedure objection application to the Tribunal in respect of the proposed licences (WO09/310 (E04/1663) and WO09/311 (E04/1778)).
On 11 June 2009, Daisy Lungunan, John Watson & Others on behalf of the Nyikina & Mangala Native Title Claimants (WC99/25), made a further expedited procedure objection application to the Tribunal in respect of the proposed licences (WO09/386 (E04/1839), WO09/387 (E04/1840) and WO09/388 (E04/1841)).
In accordance with standard practice the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period from the s 29 closing date for the lodgement of objections (14 May 2009 and 11 June 2009), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objections by consent.
The grantee party company in this matter is associated with William Robert Richmond the grantee party in objection matter Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/William Robert Richmond, NNTT WO08/1086, [2010] NNTTA 167 (14 October 2010), Hon C J Sumner (Gooniyandi) and the negotiation being conduct by the Kimberley Land Council (KLC) on behalf of their respective client followed a similar pattern. A number of the issues relating to the inquiry are the same in both matters and I have where appropriate adopted my findings in Gooniyandi for the purposes of the determination in the present matter (s 146(b) NTA).
With respect to the delay of 20 months from the time of lodgement of the objections to this determination I adopt my comments in Gooniyandi (at [7]-[15]).
At a status conference on 4 June 2010, following a number of conferences and requests to extend the time required for compliance with directions in an attempt to negotiate a heritage protection agreement, the grantee party representative reported that negotiations had broken down due to issues with regards to uranium. The grantee and Government parties requested that the matter proceed to an inquiry and I made directions in the same form as specified in Gooniyandi (at [17]).
The Government party lodged its contentions and evidence by 15 December 2009. The native title party lodged a Statement of Contentions and the unsigned and unsworn affidavits of Annie Milgan and John Watson on 28 July 2010. On 3 August 2010, the grantee party lodged with the Tribunal its Statement of Contentions. I adopt the reasons outlined in Gooniyandi (at [18]) for deciding that there had been substantial compliance with the directions of 4 June 2010 by the native title party (despite the lodgement of unsigned and unsworn affidavits) and that the springing order automatically to dismiss the objections for failure to comply did not operate.
At a Listing Hearing on 5 August 2010, the native title party representative advised that an attempt would be made to have the unsworn affidavits of Annie Milgan and John Watson affirmed or, failing this, an officer of the KLC would submit an affidavit deposing to the circumstances in which the affidavits were taken. The Government party and the grantee party representatives agreed to this course of action and on 10 August 2010 directions were made requiring the native title party to provide these documents on or before 2 September 2010.
The native title party has failed to comply with directions made on 10 August 2010 in that the affidavits of Annie Milgan and John Watson were not provided in proper form by 2 September 2010 and nor was an affidavit of the KLC officer. However, in the absence of a request from either the Government or grantee parties I refrained from dismissing the application pursuant to s 148(b) of the Act. The Tribunal sought parties’ views on the acceptance of the unsigned and unsworn affidavits and on 30 September 2010 the grantee party submitted in the same terms as outlined in Gooniyandi at [26] that the Tribunal should not accept the affidavits. The Government party agreed with the grantee party’s submission.
I adopt the reasoning and findings in Gooniyandi at [28]-[33] for deciding that the ‘affidavits’ of Annie Milgan or John Watson will not be received into evidence. Ample time was allowed for the provision of these ‘affidavits’ in a proper form or for an affidavit of officers of the KLC to depose to the circumstances in which they were taken.
Parties agreed that the inquiry be heard ‘on the papers’, that is without holding a further hearing. Although the documentary evidence does not now include all the material submitted by the native title party I am satisfied that the objections can be adequately determined on the papers (s 151(2)) given the reasons for the failure to file evidence.
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.’
With respect to the applicable legal principles and factual findings about the nature of exploration licences I adopt my findings in Gooniyandi at [37]-[39].
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licences:
E04/1663
Mt Anderson Indigenous Owned Lease 3114/480 (85.6 per cent overlap)
Yeeda Pastoral Lease H649773 (12.5 per cent overlap)
Stock Route – Fitzroy Crossing to Nobbys Well (1.7 per cent overlap)
Road Reserve (less than 0.1 per cent overlap)
E04/1778
Meda Pastoral Lease 3114/594 (84.3 per cent overlap)
Blina Pastoral Lease 3114/1271 (14.8 per cent overlap)
General Lease I150242 (0.9 per cent overlap)
E04/1839
Yakka Munga Pastoral Lease 3114/1194 (34.7 per cent overlap)
Dampier Downs Pastoral Lease 3114/844 (8.8 per cent overlap)
Dampier Downs Pastoral Lease 398/667 (14 per cent overlap)
Dampier Downs Pastoral Lease 398/740 (1 per cent overlap)
Myroodah Indigenous Owned Lease 3114/1165 (25.3 per cent overlap)
Vacant Crown Land (16.2 per cent overlap)
File Notation Area FNA/8723 – Department of Environment and Conservation, proposed conservation park (16.2 per cent overlap)
File Notation Area FNA/320 – Department of Agriculture and Food, proposed declared (obnoxious) plant quarantine area (3.9 per cent overlap)
E04/1840
Myroodah Indigenous Owned Lease 3114/1165 (82.7 per cent overlap)
File Notation Area FNA/320 – Department of Agriculture and Food, proposed declared (obnoxious) plant quarantine area (50.2 per cent overlap)
Stock Route – Fitzroy Crossing to Nobbys Well (7.5 per cent overlap)
Mt Anderson Indigenous Owned Lease 3114/480 (7.1 per cent overlap)
Vacant Crown Land (2.3 per cent overlap)
Road Reserve (less than 0.1 per cent overlap)
E04/1841
Myroodah Indigenous Owned Lease 3114/1165 (92.3 per cent overlap)
File Notation Area FNA/320 – Department of Agriculture and Food, proposed declared (obnoxious) plant quarantine area (74.2 per cent overlap)
Mt Anderson Indigenous Owned Lease 3114/480 (5.6 per cent overlap)
Vacant Crown Land (1.8 per cent overlap)
Liveringa Pastoral Lease I087500 (0.3 per cent overlap)
The entire area of the proposed licences is nationally heritage listed (NHL106063) under the jurisdiction of the Department of Environment, Water, Heritage and the Arts.
Tribunal geospatial analysis reveals there are no Aboriginal communities within the proposed licences.
Searches of the Department of Indigenous Affairs (DIA) Register of Aboriginal Heritage Sites under the Aboriginal Heritage Act 1972 (WA) (AHA) provided by the Government party reveal the following sites, either wholly or partially within the proposed licences:
E04/1663
Site 13199 – Parlkanjirl – ceremonial, mythological, insufficient information, closed access, no restrictions.
Site 13206 – Mapurrkurrnyutam – camp, water source, insufficient information, open access, no restrictions.
E04/1839
Site 27860 – Clanmyra Pool – water source, permanent register, open access, no restrictions.
E04/1840
Site 12687 – Fitzroy River – mythological, permanent register, open access, no restrictions.
Site 13213 – Jangkarrka – water source, lodged, open access, no restrictions.
E04/1841
Site 12687 – Fitzroy River – mythological, permanent register, open access, no restrictions.
The documentation also indicates that, as of 30 November 2009, E04/1663 is partially overlapped by two current exploration licences and E04/1839 and E04/1840 are partially overlapped by another two exploration licences. There are a large number of ‘dead’ exploration licences, mineral claims and temporary reserves, active between 1959 and 2008 overlapping the proposed licences. There are also a number of petroleum exploration permits and geothermal discreet area releases, granted under the Petroleum and Geothermal Energy Resources Act 1967, which overlap the proposed licences.
The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see 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 [21] Conditions 1–4). The proposed licences will also be subject to additional conditions regarding the provision of notification to the pastoral or grazing lessee of the grant of the licence and of certain exploration activities (conditions 5–6). Proposed licences E04/1663 and E04/1840 will be subject to an additional condition regarding Consent to mine on Fitzroy Crossing to Nobbys Well Stock Route Reserve 23226 subject to no mining operations being carried out on the Reserve which restrict the use of the Reserve. Proposed licence E04/1841 will be subject to additional conditions regarding Department of Water restrictions and approval requirements over the Camballin Irrigation District including written notification and approval of proposed activities, disturbance of waterways, wetland or fringing, rights of ingress to and egress from, storage of hazardous substances, abstraction of water, and activities on existing or designated future irrigation districts. Proposed licence E04/1839 will be subject to additional conditions regarding Department of Mines and Petroleum (DMP) restrictions and approval requirements over the Proposed Nature Reserve including written notification and approval of proposed activities and rights of ingress to and egress from the area.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act (WA) 1972 and any Regulations thereunder, the Environmental Protection Act (WA) 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations (WA) 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The land the subject of this licence affects an area under quarantine for Noogoora Burr (under the provisions of the Agriculture and Related Resources Protection Act (WA) 1976). Access to the quarantine area is subject to the Licensee obtaining an entry permit from the Kununurra Regional Office of the Agriculture Protection Board of WA.
An additional Endorsement will be imposed on E04/1841 which draws the licensee’s attention is drawn to the Water and Rivers Commission Act (WA) 1995 and any Regulations thereunder and the Rights in Water and Irrigation Act (WA) 1914 and any Regulations thereunder.
In addition, the grant of the proposed licence will also be subject to the following condition (see email from Mr Greg Abbott of DMP dated 29 September 2010):
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the [native title party], the applicants in Federal Court application no. [insert number] [insert (WC No)], such request being sent by pre-paid post to reach the Licensee’s address [set out address for service] not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the [native title party] the Regional Standard Heritage Agreement ("RSHA") endorsed by peak industry groups (e.g. the Goldfields/South West/ Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA ) and offered by the Kimberley Land Council”.’
Community or social activities (s 237(a))
I adopt my findings in Gooniyandi at [50] with respect to the task of the Tribunal to make a predictive assessment of whether the grant of the proposed licences is likely to interfere with the community or social activities of the native title party.
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas, s 24(7) in relation to reserve land 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 parties 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 v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 at [37]).
The evidence establishes that exploration activity has occurred in the area and within the vicinity of the proposed licences over the years up to and including 2008. There is also some current petroleum and geothermal exploration activity evidenced. Based on the number of titles granted between 1959 and 2008, I accept that these activities will already have interfered to some extent with any traditional community or social activities of the native title party but the state of the evidence means that this is not a very significant factor in this case.
The contentions of the native title party (NTPSC para 13) state that there is evidence of community and social activities which includes members native title party hunting, collecting traditional foods, conducting Law ceremonies, as well as looking after and maintaining sites of importance to them. Although these contentions identify some community and social activities of the native title party they are not specific as to how often they are carried out or the number of persons involved. However, for the reasons already given these very general contentions are not supported by evidence.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area. In most expedited procedure matters the evidence of community or social activities is not of sufficient frequency or intensity to lead to a finding that exploration activity will interfere with them. I come to the same conclusion in this matter.
I find that the exploration activity is not likely to be direct interference with the carrying on of the native title party’s community or social activities.
Sites of particular significance (s 237(b))
I adopt my findings in Gooniyandi at [57]-[58] with respect to the task of the Tribunal in deciding whether exploration activity is likely to interfere with areas or sites of particular significance to the native title party in accordance with their traditions.
The native title party asserts in their contentions at paragraph 19 that the ‘tenement areas’ are ‘site rich’. The native title party is required to provide evidence in sufficient detail and specificity in order to allow the Tribunal to make the predictive assessment in accordance with s 237(b) of the Act. There is no evidence from the native title party as to the existence of any Aboriginal sites specifically within the area of the proposed licences and there is no basis for making a finding that the areas of the proposed licences are site rich.
The DIA Register extracts provided by the Government party is the only evidence before me which details the existence of specific Aboriginal sites. The registration of a site does not necessarily mean that it is a site of particular significance to the particular native title party concerned and there is a need for evidence of the nature of the site and its relationship to the native title party to be provided to enable a finding by inference or otherwise that the site is of the relevant kind.
In this case I am prepared to infer that Site 13199 (Parlkanjirl) is a site of the relevant kind because of its nature as a ceremonial, mythological and closed site. Although not a closed site, Site 12687 (Fitzroy River) also is a site of the relevant kind. Site 13199 overlaps a part of the proposed licence area at the southern end but by no means the majority of the area. Fitzroy River runs through a small part of E04/1841 and traverses E04/1840 but the area of the River is small in comparison to the whole of the tenement.
Despite the existence of these sites I am satisfied that the protective regime under the Aboriginal Heritage Act (AHA) and the presumption of regularity should be sufficient to ensure that there is unlikely to be interference with any sites of particular significance.
I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. I accept the contentions of the grantee party that it understands its obligations under the AHA and will comply with it (GPSC para 25).
I also note that the Government party will impose on the grant of the tenements a condition which would require the grantee party to execute a Regional Standard Heritage Agreement in favour of the native title party within 90 days of the grant of the tenement, if so requested by the native title party (see para [23] above). With respect to this proposed condition I adopt my finding from Gooniyandi at [64]-[65].
Major disturbance to land and waters (s 237(c))
I adopt my findings in Gooniyandi at [67]-[68] with respect to the task of the Tribunal in deciding whether the exploration activity is likely to cause major disturbance to land and waters or create rights which are likely to do so.
The native title party contends that the grant of the proposed licences is likely to involve major disturbance to the ground applied for or will create rights whose exercise is likely to involve major disturbance including because of the activities permitted under the exploration licences which are identified in Gooniyandi (at [69]). However, no evidence has been provided to establish that there are any exceptional factors leading to a finding that major disturbance is likely. The area of the proposed licences has been the subject of prior exploration activity dating back several decades. 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). With respect to the native title party’s contentions relating to the burden on a native title party to look after country and concerns about strangers coming on to it I adopt relevant findings in Gooniyandi at [70]. I find that there is not likely to be major disturbance to land or waters or the creation of rights which are likely to do so.
Determination
The determination of the Tribunal is that the grant of exploration licences E04/1663, E04/1778, E04/1839, E04/1840 and E04/1841 to Drill Gold Pty Ltd, is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
15 October 2010
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