Daisy Lungunan, John Watson & Others on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/AFMECO Mining and Exploration Pty Ltd
[2011] NNTTA 146
•28 July 2011
NATIONAL NATIVE TITLE TRIBUNAL
Daisy Lungunan, John Watson & Others on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/AFMECO Mining and Exploration Pty Ltd [2011] NNTTA 146 (28 July 2011)
Application No: WO10/1108
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Daisy Lungunan, John Watson & Others on behalf of the Nyikina & Mangala Native Title Claimants – (WC99/25) (native title party)
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The State of Western Australia (Government party)
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AFMECO Mining and Exploration Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 28 July 2011
Catchwords: 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 attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109(3), 146, 151(2), 237
Mining Act 1978 (WA), ss 24, 26, 63
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18
Cases: Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representatives of the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Representatives of the Mr Domnhall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbot, Department of Mines and Petroleum
Representative of the
grantee party: Mr Greg Abbott, M & M Walter Consulting Tenement & Native Title Management
REASONS FOR DETERMINATION
On 7 April 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1942 (‘the proposed licence’) to AFMECO Mining and Exploration Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence, E04/1942, comprises an area of 538.61 square kilometres, located 48 kilometres east of Derby, in the Shire of Derby-West Kimberley. It is 23.40 per cent within the registered native title claim of the Nyikina and Mangala People (WC99/25 – registered from 28 September 1999). The overlap is in the bottom south, and south west portion of E04/1942. No other native title claims overlap the proposed licence area.
On 9 August 2010, Daisy Lungunan & Others on behalf of the Nyikina and Mangala Native Title Claimants (WC99/25) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal (WO10/1108).
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the Act’s s 29 notification 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. Following a number of requests to vary the compliance dates, final directions made by the Hon C J Sumner on 21 December 2010 included that the Tribunal be provided with documents and contentions: of the Government party on or before 7 February 2011; of the native title party on or before 14 February 2011; and of the grantee party on or before 21 February 2011.
The Government party lodged its evidence and statement of contentions on 3 February 2011, with supporting documentation lodged by the Department of Mines and Petroleum on 24 January 2011.
On 11 February 2011, the native title party lodged a statement of contentions, together with an undated but signed and sworn affidavit of Mr Harry Lennard.
The grantee party lodged its contentions on 10 March 2011. I note the grantee party’s contentions were lodged outside of the compliance date as set down by the Hon C J Sumner, but I accept them as there does not appear to be any objection from other parties in relation to acceptance out of time, and the Tribunal is not bound by the rules of evidence (as per s109(3) of the Act).
A listing hearing occurred on 24 February 2011 and following some communications between the Tribunal and all parties, by 29 March there was agreement that the matter could be determined ‘on the papers’ (that is without holding a hearing). I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act).
On 26 May 2011, I was appointed by the Hon C J Sumner as the Member for the purpose of conducting the inquiry.
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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
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 [2006] NNTTA 65 (‘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 Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in Relation to the Proposed Act
The Government party has provided the following documents: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence site; a report and plan from the Department of Indigenous Affairs (‘DIA’) Register; a copy of the tenement application; an instrument of licence and the first schedule listing land included and excluded from the grant; a copy of the proposed endorsements and conditions of grant; and a tengraph quick appraisal.
Government party documentation establishes the significant underlying land tenure of the proposed licence to be as follows:
· An Exploration Permit Application (Appl 5/07-8EP) at 48.3 per cent;
· An Exploration Permit (EP 129 R5) at 51.7 per cent;
· A Production Licence Application (Appl 2/91-2 L) at 5.9 per cent;
· Two Historical Leases (HL 396/450) at 82.3 per cent and (HL 396/412) 11 per cent;
· Two Pastoral Leases MEDA (PL 3114/594) at 79.3 per cent and YEEDA (PL H649773) at 1.5 per cent;
· A Stock Route (CR 12474) at 4 per cent;
· A Repeater Station Site and Access (CR 40778) at less than 1 per cent; and
· Four Coastal Waterline items affected, at a total of less than 1 per cent.
The documentation also indicates 13 tenements in the proposed licence area granted between 1965 and 2008, and which were all dead between 1966 and 2008, with six cancelled, two forfeited and five surrendered. I appreciate that not all of the land affected is within the 23.40 per cent overlap between the proposed licence and the native title party claim area. Further information from DMP indicated that the previous exploration activity occurred sporadically across parts of the E04/1942. There are six current live tenements affected which each encroach on E04/1942 by 0.3 per cent or less.
A Tribunal geospatial map prepared on 11 April 2011 indicates no Aboriginal communities within the proposed licence.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals two registered Aboriginal sites and one other Heritage place within the proposed licence E04/1942. None of these sites are within the claim area/proposed licence overlap.
A draft tenement endorsement and conditions extract included in the Government party’s documentation indicates the grant of the proposed licence intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]) and seven further conditions:
‘5The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the licence; or
·registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Repeater Station Site and Access Reserve 40778, Gravel Reserve 41506 and the Foreshore, Seabed and Navigable Waters.
8No interference with Geodetic Survey Stations DERBY 134, DBY 126 to 133 and ED 23 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
10The rights of ingress to and egress from Miscellaneous Licences 04/22 and 04/54 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
Consent to explore on Stock Route Reserve 12474 granted subject to:
12No exploration activities being carried out on Stock Route Reserve 12474 which restrict the use of the reserve.’
The draft tenement endorsement and conditions extract also makes the following two endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach):
‘1The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.’
Government contentions at (at para 5(e)) indicates that a further condition will be placed on the grant of the proposed licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Nyikina Mangala and/or the Warrwa, the applicants in Federal Court applications 6099 of 1998 (WC99/25) and 262 of 2010 (WC10/12) respectively, such request being sent by pre-paid post to reach the Licensee’s address, c/- M & M Walter Consulting, PO Box 8197, Subiaco East WA 6008 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Nyikina Mangala and/or the Warrwa, as the case may be, the Regional Standard Heritage Agreement endorsed by peak industry groups [eg Goldfields/South West/ Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA] and offered by the Kimberley Land Council.’
Evidence provided by the native title party
The contentions of the native title party include the signed and sworn affidavit of Mr Harry Lennard. The affidavit of Mr Lennard is as follows:
‘I, Harry Lennard of Karmulununga Community, Derby, in the State of Western Australia solemnly and sincerely declare and affirm THAT:
1.My name is Harry Lennard. I have three Aboriginal names, Walawaregudung, Bundu Bundu and Nimarde. I was born on 7 August 1951 at the old Native Hospital in Derby.
2.I have knowledge about the country where AFMECO Mining and Exploration Pty Ltd, the “grantee party”, has applied for exploration licence number E04/1941 and E04/1942, the “exploration licence area”. I have been shown maps of the exploration licence area and I go to that area quite frequently. The maps of the exploration licence area that I was shown are attached to this affidavit and marked “A”.
3.I am a Warrwa man. John Watson, one of the senior people for the Nyikina and Mangala Native Title Determination Application (WAD 6099/98), has identified that I can speak for the exploration licence area. Warrwa people have a traditional connection to the exploration licence area.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The exploration licence area is on both Nyikina Mangala and Warrwa country.
5.I visit the exploration licence area frequently, during the wet season and the winter. During the wet season we hunt for goanna, ducks, turkey and kangaroo. We still hunt in the winter time as well. I visit the exploration license [sic] area about once a fortnight.
6.I also visit the exploration licence area to go and see the old people. I go there with my kids on school holidays.
7.The country in and around the exploration licence area is spring and pindan country. That country is important to me and my family. We go camping and fishing there. We take our children and our grandchildren, like how the old people took us. Now we have vehicles so we can go further into the country than we used to go. We teach our children about country because we want to leave our children with something.
8.The old people had ownership of the land before native title. They are connected to it. They taught us where we can go and where we can’t go and now we teach our children.
9.There are no Traditional Owners living on the exploration licence area any more. They were kicked off by the pastoral lessees but we go back to visit frequently.
10.There is a lot of native wildlife in and around the exploration licence area. There are goanna, turkey, emu, kangaroo and ducks. We also get boab nuts for carving from the exploration licence area, and bush fruits like koongkuberry and bush orange.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
11.There are very significant places in the area of the exploration licence area.
12.There are big hills in the area of E04/1941 called Yardada. In the old days. People [sic] would climb up on there to mark boundaries. There is a Dreaming trail that runs through those hills.
13.There are also ceremonial grounds inside and around the exploration licence area; we still visit those areas today.
14.In the area of E04/1942 there is a voodoo tree called Millarlai where they sung people. It is a boab tree passed on from generation to generation. There are figures carved upside down in the tree. If you look carefully, you can see a catfish pin or wire in the carvings.
15.There is also a men’s ceremonial site within E04/1942 on the hill, not far from the station. There are many secret spots near those hills that you cannot go to.
16.There are many secret spots in the exploration licence area. When we were kids we were not allowed to go to the secret spots. Even today I can’t go there. It belongs to certain people; it is their property and their Dreaming. The old people said that something will happen if you go there.
17.The water areas inside and around the exploration licence area including the Jumu are very important to the Traditional Owners. We need to protect these areas. Water is very important to us.
18.That country in and around the exploration licence area is spring country and pindan country. That country is important to me and my family. We teach our children about country because we want to leave our children with something.
MAJOR DISTURBANCE TO LAND OR WATER
19.I am aware of the activities which the grantee party could perform under the terms of the exploration licences, if granted. They haven’t spoken to people to do the exploration out there. They want to go out there without talking to us first. All mining companies have to come and talk to us first. They can’t go destroying places.
20.In the old days, strangers asked permission before they went on country. Now people don’t know the process. We need to pull people up sometimes. The native title process is a new ball game in a guidya white man sense. The mining company should be familiar with this process and with cultural awareness.
21.Strangers who go on to the country and who don’t ask permission are trespassing. They need to come and talk to us first.
22.If we don’t know what they are doing on our country and digging holes and cutting lines it will be no good. There will be erosion and damage to the country. We want to look after country and for them to tell us what they are after.
23.There are many significant places on the exploration area and waterholes and animals which are important to us. We would like the mining companies to come and talk to us before they go there. There are many special places that you cannot touch. You can go there if you are a Traditional Owners [sic]. But strangers cannot go there without our permission [sic]’
Mr Lennard’s evidence has been presented by the native title representative body for the Nyikina and Mangala claim. Mr Lennard attests that one of the senior people for the Nyikina and Mangala native title determination application, Mr John Watson, has identified that he can speak for the exploration licence area, and while there is no evidence from Mr Watson, I accept that Mr Lennard has the necessary authority to speak for country on behalf of the native title party.
Community or social activities (s 237(a))
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including ss 24, 26 and 63, as well as ss 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’), to contend, among other things, that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties regarding the area of land concerned.
In relation to community and social activities at the proposed licence area, Mr Lennard states that he lives at the Karmulununga (sic) Community (which is approximately 30-40 kilometres north west of the proposed licence/claim area overlap), and he states that he visits the proposed licence area frequently, ‘about once a fortnight’ (at 5). He states that traditional owners visit frequently (at 9), and engage in activities including:
· hunting (for goanna, ducks, turkey, emu, kangaroo) of which there is ‘a lot ... in and around the exploration licence area’(at 5, 10);
· camping (at 7);
· fishing (at 7);
· taking children and grandchildren to the area for teaching purposes (at 6-8, 17);
· taking boab nuts for carving (at 10);
· taking bush fruits (such as koongkuberry and bush orange) (at 10); and
· protecting ceremonial grounds and water areas (at 13-14, 16, 22).
In Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Wilma Freddie’), affidavit evidence on behalf of a native title party indicated access to a proposed tenement was regular, but the evidence provided only general information on the present activities of the claim group. The Tribunal found (at [11] and [13]) the requisite level of interference with social and community activities was unlikely in that matter as there was little specific evidence of the activities carried out over the area. In the current matter, Mr Lennard’s evidence is specific in that himself and traditional owners access the area frequently, he and his family attends fortnightly, and he lives in a community relatively near the proposed licence/claim overlap area. He has also outlined, in some specificity, the types of social and community activities that are undertaken, and that they involve a number of generations, including grandchildren and children.
The size of the proposed licence is 538.61 square kilometres and the area of the Nyikina and Mangala claim is approximately 27252.72 square kilometres. The size of the overlap between the claim and the proposed licence is just under one quarter of the proposed licence area. Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, [2008] NNTTA 108, I find that the size of the proposed licence area in the context of the much larger native title claim, particularly given the size of the overlap, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.
Grantee Party contentions indicate that they do not intend to exclude any community activities on the proposed licence area ‘unless during a particular activity it is considered temporarily unsafe for the conduct of community activities’, and if it should be unsafe they ‘will consult with the Community to relieve apprehensions’ (at 1). The Grantee Party indicates a willingness to enter into an Alternative Heritage Agreement (at 4, 6). They also contend there has been ‘extensive previous mining activity’ over the proposed licence area (at 5) but have not provided any detail or annexures in support of this. They have included a proposed work program and a proposal for rehabilitation (at 3.3).
Hon C J Sumner in Tarlpa (at [121]) makes the point that ‘The Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).’ In the present matter, previous activities appear to have occurred in various parts of the overlap between the proposed licence and the claim area.
In WO10/305 I found that there was a real chance or risk that exploration activity was likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way, and found that the granting of the exploration licence E04/1940 was not an act attracting the expedited procedure. In that matter, there was an indigenous owned lease and previous exploration, mining and/or pastoral activities appeared to have occurred predominantly outside of the claim/proposed licence overlap. There was an Aboriginal community within the proposed licence in close proximity to the claim/proposed licence overlap, and there were four other communities approximately 10 kilometres away. There was also: a registered site (ID14086) within the overlap area between the claim and proposed licence; and an almost 50 per cent overlap between the claim and proposed licence.
In the present matter, WO10/1108, dealing with E04/1942: there are no registered sites within the overlap; no aboriginal communities within the proposed licence; the overlap is just under 25 per cent of the claim/proposed licence area; and previous exploration, mining and/or pastoral activity appears to have occurred sporadically over the proposed licence. As such, in relation to the granting of E04/1942, taking into account all of the evidence and those aspects in particular, I find that there is not a real chance or risk that exploration activity is likely to 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 (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the AHA shows two registered sites and one other Heritage place within the claim/proposed licence area, but none of these are within the claim/licence overlap. This does not mean there may not be other sites or areas of particular significance to the native title party over that area 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 does protect all Aboriginal sites, whether on the Register or not.
In his affidavit (at paras 11-18) Mr Lennard outlines a number of sites of significance to the native title party, although some relate to other proposed licences and some are not within the overlap between the claim area and the E04/1942 proposed licence. Those that do appear to be at least within the licence, if not within the overlap area, include:
· Ceremonial grounds;
· A voodoo tree (Millarlai);
· A men’s ceremonial site, on the hill (not far from ‘the station’), as well as many secret spots ‘near those hills’;
· A secret spot in the exploration licence area which ‘belongs to certain people; it is their property and their Dreaming’;
· Water areas inside and around the exploration licence area, including the Jumu; and
· That the area in and around the exploration licence is spring country and pindan country.
Mr Lennard’s evidence is supported by the native title party contentions, which state (at para 22) there are laws and sites of significance which do not fall within the definition of sites within the AHA, and would not, therefore, be protected under that Act. They contend that (at para 27) the complex nature and number of sites and areas of particular significance within and around the tenement reduce the ability of an endorsement on the grant of the proposed tenement, and that such an endorsement would not necessarily mean it would be unlikely that there would be interference of the kind relevant to s 237(b). Mr Lennard’s affidavit (at paras 7 and 8) also refers to the importance of the country to himself and his family, and taking his children and grandchildren to the area. Mr Lennard does not state which station the ceremonial site is near, but presumably it is Meda, which falls outside of the claim/licence overlap area.
The sites identified in the evidence may not coincide with registered sites in DIA documents, apart from the three listed DIA sites which are clearly identified, although these sites do not fall within the proposed licence and claim overlap area. I am satisfied that these sites and areas are of particular significance to the native title party in accordance with its traditions. 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 ss 17 and 18 of the AHA and s 63 of the Mining Act to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91])). 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. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the RSHA: (Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1 at 386-388, [30]-[34] (‘Champion’)).
As outlined above (at [26]), the grantee party’s attitude to engaging with an Alternative Heritage Agreement is positive, as well as to the regulatory regime in general and I accept that the grantee party intends to act lawfully and in accordance with the AHA and the Mining Act. The grantee party is also now on notice of the existence of the voodoo tree and the existence of other areas of significance, which may or may not be within the overlap area.
The evidence of the native title party is persuasive, however, I am confident that the grantee party has lawful and positive intentions and that the regulatory regime will operate to eliminate the likelihood that sites of significance may be interfered within the 23.4 per cent claim/licence overlap.
For these reasons, and the reasons outlined above at [28] and [29], I find that there is not likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
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 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 at [74]-[79] and the cases cited therein).
In relation to the question of the general impact of mining or exploration in this matter in regard to land or waters, there is insufficient evidence for me to conclude any negative inference against the grantee party. Further, there is insufficient evidence before me in relation to a negative impact on land or water on or near the proposed licence area. There has not been sufficient nexus provided or evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113, nor in my view is such disturbance likely to be considered major as required by the general community as outlined in Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18.
The evidence in this matter does not establish that the grant of the proposed licence will result in a major disturbance to land or create rights which will do so.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1942 to AFMECO Mining and Exploration Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
28 July 2011
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