Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants/Western Australia/Geotech International Pty Ltd

[2009] NNTTA 165

NATIONAL NATIVE TITLE TRIBUNAL

Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants/Western Australia/Geotech International Pty Ltd, [2009] NNTTA 165 (8 December 2009)

Application No:        WO09/151

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

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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Geotech International Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Neville MacPherson, Member
Place:  Perth
Date:  8 December 2009

Native title – future act – proposed grant of exploration licence – 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 not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 151(2), 237

Mining Act 1978 (WA), s 63

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

Cases:Banjo Wurunmurra and Others on behalf of Bunuba Native title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005) Hon C J Sumner (referred to below as Deputy President Sumner)

Banjo Wurunmurra and Others on behalf of Bunuba Native title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), Deputy President Sumner

Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262

Delores Cheinmora & Others  on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/447, [2008] NNTTA 8 (21 January 2008), Deputy President Sumner

Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd, NNTT WO06/103 and WO06/197, [2007] NNTTA 29 (29 March 2007), Deputy President Sumner

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

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), Member Sosso

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Ward v Western Australia (1996) 69 FCR 208; (1996) 136 ALR 557

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Representatives of the     Ms Hema Hariharan, Kimberley Land Council

native title party:            Ms Ania Maszkowski, Kimberley Land Council

Representatives of the     Mr Rod Wahl, State Solicitor’s Office

Government party:         Mr Greg Abbott, Department of Mines and Petroleum

Representative of the
grantee party:                 Mr Paul Askins, Geotech International Pty Ltd

REASONS FOR DETERMINATION

1. On 19 November 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1810 (‘the proposed licence’) to Geotech International Pty Ltd (‘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).

2. The proposed licence comprises an area of 149.68 square kilometres located 92 kilometres south east of Derby, in the Shire of Derby-West Kimberley and is entirely overlapped by the Nyikina and Mangala registered claim (WC99/25, registered from 28 September 1999).

3. On 19 March 2009, Daisy Lungunan, John Watson and Others, on behalf of the Nyikina and Mangala Native Title Claimants (‘the native title party’), made an expedited procedure objection application to the Tribunal.

4. On 7 April 2009, Deputy President (‘DP’) Sumner was appointed as the Member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, 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, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

5. At an adjourned status conference on 19 August 2009, following a number of conferences and requests to amend directions to allow further time for negotiations, the native title party reported that to date attempts to negotiate an agreement had been unsuccessful and they did not believe the matter could be resolved by way of an agreement. All parties supported the matter proceeding to inquiry.

6. Both the Government party and native title party lodged their contentions and evidence in accordance with amended directions. The grantee party’s representative indicated at the listing hearing that the grantee party would rely on the evidence submitted by the Government party; however, subsequent to the listing hearing, the grantee party’s representative submitted a brief statement and requested this be considered by the Tribunal for the inquiry. No parties objected to this statement being considered.

7. At the listing hearing on 1 October 2009, parties reported that all contentions and evidence had been lodged and agreed that the matter could be heard ‘on the papers’. I am satisfied that the objections can be adequately determined in this manner (s 151(2) NTA).

8. On 22 October 2009, I was appointed by DP Sumner as the Member for the purposes of the conduct of the inquiry.

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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal 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) (‘the Mining Act’) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified.

2. 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 Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 (WA), which requires approval by the Environmental Officer, DoIR (as noted above, now ‘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 to obtain advice from that department that the proposed activities are acceptable.

3. 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, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), DP 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

1. Government party documentation establishes the following notable underlying land tenure on the proposed licence:

• Liveringa Pastoral Lease I087500 (65.3 per cent overlap)

• Mt Anderson Indigenous Owned Lease (12.5 per cent overlap)

• Private Land (14.5 per cent overlap)

• Use and Benefit of Aboriginal Inhabitants Reserve 41497 (4.9 per cent overlap)

• Department of Water Camballin Irrigation District 9 (42.6 per cent overlap)

• Stock Route – Fitzroy Crossing to Nobbys Well (2.7 per cent overlap)

1. The entire area of the proposed licence is nationally heritage listed (NHL106063) under the jurisdiction of the Department of Environment, Water, Heritage and the Arts.

2. Tribunal geospatial analysis reveals one Aboriginal community within the proposed licence (Jarlmadangah) and the Jarlmadanka, Luluigui, Looma and Looma New communities situated in the near vicinity (approx eight kilometres or less).

3. The documentation also indicates that, as of 15 June 2009, there are no active tenements within the proposed licence. One ‘dead’ temporary reserve, active between 1965 and 1966 partially overlaps the proposed licence. Two petroleum exploration permits, EP457 and EP428, with an encroachment of 0.7 and 99.3 per cent respectively, were granted under the Petroleum and Geothermal Energy Resources Act 1967 between 2004 and 2007. In relation to both petroleum exploration permits, a determination that the act may be done by consent was made by the Tribunal.

4. In relation to Aboriginal Reserve land, the Government party contends:

   ‘Reserves for the Use and Benefit of Aborigines

   (b)… Part III of the Aboriginal Affairs Planning Authority Act 1972 applies. Section 24(7) of the Mining Act 1978 provides that mining (which term includes exploration) on Aboriginal reserve land needs the written consent of the Minister for Mines and Petroleum, who must consult with and obtain a recommendation from the Minister for Indigenous Affairs, before giving any such consent;

   (c)Aboriginal reserve land is subject to the Aboriginal Affairs Planning Authority Act 1972, which prevents the grantee party from gaining access to the land without authorisation from the Minister for Indigenous Affairs: section 31 of the Aboriginal Affairs Planning Authority Act 1972, and regulation 8 of the Aboriginal Affairs Planning Authority Act Regulations;

   (d)in practice the Minister for Indigenous Affairs requires that the grantee party negotiate an agreement with the relevant Aboriginal community in respect of access to the land for exploration activities;

   (e)the agreement referred to in (d) forms the basis for the formulation of the conditions to be attached to the authorisation of the Minister for Indigenous Affairs, to the grantee party, for access to the land for exploration activities;

   (f)in practice, the authorisation of the Minister for Indigenous Affairs includes conditions relating to the protection of, and prevention of interference with, the community life of the relevant Aboriginal community;

   (g)in practice, the grant of a tenement of the type proposed may involve the imposition of conditions, which are directed to the protection of any Aboriginal community on the land;’

5. The proposed tenement is wholly within the area of registered Indigenous Land Use Agreement (‘ILUA’) SDWK Nyikina Mangala (WI2005/001), registered on 19 November 2008. The agreement between the Shire of Derby/West Kimberly (‘SDWK’) and the Nyikina and Mangala people states that parties consent to all future acts that consist of the construction, operation, use, maintenance and repair by the SDWK, as the relevant local government body, of any of the things listed in section 24KA(2) of the Act.

6. 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).  Additional conditions include:

• Providing notification to the pastoral or grazing lessee, of the grant of the licence and of certain exploration activities (conditions 5–6)

• Prior consent is obtained before commencing any exploration activities on Use and Benefit of Aboriginal Inhabitants Reserve 41497 (condition 7)

• 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 (condition 8)

• 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 (conditions 9-15)

• Excavation activities prohibited on existing or designated future irrigation districts, or on any area of land within 50 metres of the banks of an irrigation channel, drain, wetland or watercourse unless undertaken with the written permission of the Director, Environment, DoIR and the Department of Water (condition 16)

1. 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 Water and Rivers Commission Act (WA) 1995 and any Regulations thereunder, the Rights in Water and Irrigation Act (WA) 1914 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.

• Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence 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 interferences) (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 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 451-452 [27]).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63, conditions to be imposed on exploration licences 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.

3. The evidence establishes that little to no exploration activity has occurred in the proposed licence area and vicinity over the years and there is little evidence to suggest current activity in the mineral resources sector. There is some current petroleum exploration activity evidenced, however, this does not appear to be a case where there has been extensive mining activities which may already have significantly affected the native title party’s community or social activities.  There is, however, an existing pastoral lease which significantly overlaps the proposed licence and has likely affected the native title party to some extent.

4. The evidence establishes that one Aboriginal community (Jarlmadangah or Jarlmadangah-Burru) is situated within the proposed licence. A further four communities are located in the vicinity of the proposed licence with Looma New some 500 metres east of the proposed licence, Looma some two kilometres east of the proposed licence, Luluigui approximately eight kilometres south of the proposed licence and Jarlmadanka situated some six kilometres west of the proposed licence.

5. The evidence of Mr John Watson establishes that he lives at Jarlmadangah-Burru Community, located within the proposed licence, and goes hunting and camping on the proposed licence ‘most weekends’. He deposes that members of the native title party engage in community and social activities over the area of proposed licence and that the area is used ‘regularly...for ceremonies and men’s law business’.  Mr Watson details further activities carried out by the Nyikina Mangala people, such as camping, hunting, fishing, gathering of bush tucker, teaching young people about the native title party’s culture and traditional practices, and visiting and looking after places (including paintings and burial grounds). The information on the frequency of the visits or numbers of persons involved in the activities described is limited.  Nonetheless, the area of the proposed licence and its surrounds contain five Aboriginal communities which could support an inference that the community or social activities are of a frequent or intensive nature (see Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), DP Sumner at [20] and Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd, NNTT WO06/103 and WO06/197, [2007] NNTTA 29 (29 March 2007), DP Sumner at [20] - [24]).

6. 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 (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (now DP Sosso) (at [43]-[44])).

1. Although mindful of these considerations, they are not decisive in all cases in reaching a conclusion that interference with community or social activities is unlikely (Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), DP Sumner (‘Banjo Wurrunmurra’) (at [19]-[23]).  In my view, the present case exhibits factors which lead me to find that the proposed exploration activity is likely to directly interfere with the community or social activities of the native title party: the native title party’s members live in a number of locations either on or in close proximity to the proposed licence and there is evidence that a number of community or social activities are currently carried out on a regular basis.

2. The native title party’s Statement of Contentions says that the mere existence of the grantee party on the proposed licence area in circumstances where there has been no negotiation or consultation with the native title party could give rise to interference with community or social activities even though there is no physical interference.  Reliance is placed on the statement of Carr J in Ward v Western Australia (1996) 69 FCR 208; (1996) 136 ALR 557. I adopt the findings of the Tribunal in Delores Cheinmora & Others  on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/447, [2008] NNTTA 8 (21 January 2008), DP Sumner (at [26]) to reject this contention. Since the 1998 amendment to s 237 of the Act, the statement of Carr J is no longer applicable.

Sites of particular significance (s 237(b))

1. 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.  Recorded on the Register kept under the AHA is one open access site and 13 closed access sites within the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence 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.

2. Mr Watson attests to the presence of burial sites around Grant Range and Jarlmadangah, as well as ‘many significant places around these hills’ (para 12). Tribunal mapping locates the Grant Range as almost entirely within the proposed licence, covering a large portion from the north west to the south east corner of the proposed licence, whilst Jarlmadangah is located in the western portion of the proposed licence.  Mr Watson says the burial sites are the ‘biggest concern we have’ and that it has been ‘our customary practice to bury people up there since the beginning of time’. The affidavit of Mr Watson also mentions the presence of rock art sites and a massacre site in the area. Mr Watson says he is unable to specify the location of these places ‘because it is against our belief system’ (para 14). Despite the difficulties in verifying the location some of these sites, it is apparent that the area of the proposed licence contains a number of sites considered of significance to the native title party. There are numerous DIA registered sites located in and around Grant Range and Jarlmadangah, including one skeletal material/burial site and several painting sites.

3. The evidence provided by the native title party in relation to sites is uncontested and I accept that it establishes the existence of sites in the general area of the proposed licence. I am satisfied that there are burial and rock art sites of particular significance to the native title party. I believe I can also safely infer that most, if not all, of the 14 sites on the DIA site Register fall into this category given their characteristic, including that 13 of them are closed access. In addition to the sites situated within the proposed licence, Tribunal mapping and DIA site register information establishes that there are a high number of registered sites to the west and east of the proposed licence area. Accordingly, I am satisfied that the area is relatively rich in sites.

4. I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance.  The Government party relies on the regulatory regime based on the AHA which has been described on numerous occasions by the Tribunal, most recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protection 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 (Banjo Wurrunmurra at [26]–[34]).

5. In the statement provided by the grantee party, it states they are willing to enter into a heritage protection agreement with the native title party and to exclude the area of Aboriginal Reserve from the area of grant. The grantee party’s intentions with respect to the protection of Aboriginal sites is also evidenced by the fact that it attempted (albeit unsuccessfully) to negotiate such an agreement with the native title party.

6. Despite the above contentions, the grantee party has not provided any specific evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the proposed licence.  In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]). There is no evidence, however, to suggest that the grantee party will not act lawfully and in accordance with the AHA.

7. Taking all these factors into account, and particularly the nature and extent of the sites of particular significance which have been identified, and that the area of the proposed licence is, in my opinion, site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38).

8. While the grantee party indicates an awareness of registered sites in the proposed licence area, and is now on notice that other sites may exist, the exact location and extent of many of those sites is unknown and, unless there is close liaison between the native title party and grantee party through negotiation and agreement, I find there is a real risk of interference with them.

Major disturbance to land and waters (s 237(c))

1. No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(a) and (b).

Determination

1. The determination of the Tribunal is that the grant of exploration licence E04/1810 to Geotech International Pty Ltd is not an act attracting the expedited procedure.

Neville MacPherson
Member
8 December 2009