Daisy Lungunan, John Watson & Others on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/AFMECO Mining and Exploration Pty Ltd

[2011] NNTTA 138

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 138, (20 July 2011)

Application No: WO10/1231

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) (Applicant, 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:   20 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, 146, 151(2), 237

Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)

Cases: Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (22 February 2011), Hon C J Sumner

Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner

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 State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340

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

Representatives of the

native title party:         Ms Ania Maszkowski, Kimberley Land Council

Representatives of the Mr Domnhall McCloskey, State Solicitor’s Office

Government party:      Ms Ros Dawson, Department of Mines and Petroleum

Representative of the

grantee party:               Mr Greg Abbott, M & M Walter Consulting Tenement & Native Title Management

REASONS FOR DETERMINATION

1. On 19 May 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 E04/1941 (‘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).

2. The proposed licence, E04/1941, comprises an area of 382.16 square kilometres, located 20 kilometres east of Derby, in the Shire of Derby-West Kimberley.  It is 0.29 per cent within the registered native title claim of the Nyikina and Mangala People (WC99/25 – registered from 28 September 1999).  The overlap is effectively the southern boundary of the proposed licence meeting the northern boundary of the claim area, hence the small percentage of overlap.  No other native title claims overlap the proposed licence area.

3. On 20 September 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 (WO10/1231).

4. 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.

5. 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.

6. The native title party lodged a statement of contentions on 11 February 2011, together with an undated but signed and sworn affidavit of Mr Harry Lennard. Mr Lennard’s evidence has been presented by the native title representative body for the Nyikina and Mangala claim. I accept that Mr Lennard has the necessary authority to speak for country on behalf of the native title party. 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 s 109(3) of the Act).

7. 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).

8. 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

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’), 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).

2. 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, NNTT WO10/171, [2011] NNTTA 22 (22 February 2011), Hon C J Sumner (‘Tarlpa’) at [10]-[16].

3. 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).

4. 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 v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576 (‘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

1. A Tribunal geospatial map prepared on 11 April 2011, and DMP information, indicates that the overlap of 0.29 per cent is effectively the southern boundary of the proposed licence meeting the northern boundary of the claim area, hence the small percentage of overlap.  There are no sites or communities along that boundary overlap, and two sites registered with DIA are some 10-20 kilometres away from that boundary overlap.

2. Mr Lennard’s affidavit, and the native title party contentions, refer to community and social activities, sites of significance, and potential disturbance to land or waters across the proposed licence E04/1941 as a whole, but do not provide any specific evidence in relation to the 0.29 per cent overlap portion, which is the only part of the proposed licence which needs to be considered for the purposes of this determination.

3. The Government party relies on relevant aspects of its regulatory regime, including the Mining Act 1978 (WA) and the Aboriginal Heritage Act 1972 (WA) (‘AHA’), to contend that the granting of the proposed licence is not likely to lead to direct interference with the carrying on of community or social activities or interference with sites of particular significance of the native title party, nor any major disturbance to land or waters.

4. Grantee party contentions do not specifically address the area of overlap between the proposed licence and claim area, but they address the proposed licence as a whole, which includes that overlap area.  The grantee party indicates 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 have included a proposed work program and a proposal for rehabilitation (at 3.3).

5. The size of the proposed licence is 382.16 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 only 0.29 per cent 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 very small size of the overlap makes it less likely that the grant of the proposed licence will interfere with the native title party’s community or social activities (as per s 237(a) of the Act).

6. I apply the same information and reasoning as outlined above to find it unlikely that sites of significance or areas of land and water (as per s 237(b) and s 237(c) of the Act) will be disturbed or interfered with.

Community or social activities (s 237(a))/Sites of particular significance (s 237(b))/ Major disturbance to land and waters (s 237(c))

1. Taking into account the available evidence and information, and in particular, the very small overlap of 0.29 per cent between the proposed licence and the claim area, I find that the determination which is supported is that the granting of the proposed licence E04/1941 is unlikely to lead to:

   a.direct interference  with the community or social activities of the native title party;

   b.interference with areas or sites of particular significance to the native title party; or

   c.major disturbance to land and waters.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E04/1941 to AFMECO Mining and Exploration Pty Ltd is an act attracting the expedited procedure.

Helen Shurven
Member

20 July 2011