Doris Ryder & others on behalf of Lamboo/Western Australia/Kallenia Mines Pty Ltd
[2011] NNTTA 6
•4 February 2011
NATIONAL NATIVE TITLE TRIBUNAL
Doris Ryder & others on behalf of Lamboo/Western Australia/Kallenia Mines Pty Ltd, [2011] NNTTA 6 (4 February 2011)
Application No: WO10/391
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
Doris Ryder & others on behalf of Lamboo – (WC99/20) (Applicant, native title party)
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The State of Western Australia (Government party)
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Kallenia Mines Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 4 February 2011
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109, 148, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362
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, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner
Representatives of the Lauren West, Kimberley Land Council
native title party: Ania Maszkowski, Kimberley Land Council
Representatives of the Domhnall McCloskey, State Solicitor’s Office
Government party: Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Melissa Watts, Hunt & Humphrey Project Lawyers
REASONS FOR DETERMINATION
On 18 November 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4295 (‘the proposed licence’) to Kallenia Mines 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).
E80/4295, comprising an area of 67.96 square kilometres located 116 kilometres south west of Halls Creek, in the Shire of Halls Creek, is 100 per cent within the registered native title claim of the Lamboo People (WC99/20 – registered from 17 September 1999). No other native title claims overlap the proposed licence.
On 16 March 2010, Doris Ryder & Others on behalf of Lamboo (WC99/20) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
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 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. Directions made by the Hon C J Sumner requested the Tribunal be provided with: contentions of the State by 5 July 2010; contentions of the native title party by 12 July 2010; and contentions of the grantee party by 19 July 2010.
The Government party lodged its contentions and evidence on 5 July 2010. Following requests for directions to be amended on a number of occasions to varying dates, Hon C J Sumner approved the final set of requested amendments on 24 August 2010. A springing order was imposed on the native title party for compliance on or before 22 September 2010, with non compliance attracting dismissal of the expedited procedure objection application WO10/391, pursuant to s 148(b) of the Act.
The unsigned contentions of the native title party were lodged on 22 September 2010, with the same contentions, signed, being lodged on 29 September 2010. A sworn affidavit of Mr Stan Brumby in support of the native title party contentions was lodged on 30 September 2010. I note the sworn affidavit was executed in Halls Creek on 22 September 2010, and the delay in lodging it appears to have arisen from waiting for the native title party legal representative to return from on country meetings with the document.
The grantee party contentions were lodged on 30 September 2010.
The grantee party raised an objection in the listings hearing on 30 September 2010 that Mr Brumby’s sworn affidavit was lodged out of time. The parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a hearing), subject to the Tribunal’s consideration of this issue. I am satisfied that the objection can be adequately determined in this way (s 151(2) of the Act). On 10 December 2010, I was appointed by Hon C J Sumner as the Member for the purpose of conducting the inquiry.
In considering the issue of the sworn affidavit of Mr Brumby being lodged out of time, I have looked at all the submissions and evidence, and taken into account:
·that Mr Brumby’s affidavit was sworn on 22 September 2010;
·the logistical difficulties that are sometimes presented in obtaining witness signatures on documents in remote locations, and in then lodging these documents;
·that the grantee party contentions were also lodged out of time, on 30 September 2010; and
·that the Tribunal is not bound by the rules of evidence (s 109(3) of the Act).
I am satisfied that the sworn affidavit of Mr Brumby, the grantee party contentions, and the signed native title party contentions (being identical to those lodged in time), are admissible, accept them on their face, and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362)).
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’). 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, 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 (‘DIA’) and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
Evidence in relation to the proposed act
Government party documents include: 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 DIA Register; a copy of the tenement application and the proposed endorsements and conditions of grant; and a tengraph Quick Appraisal.
A map prepared by the Tribunal’s Geospatial services on 7 October 2010 shows there are no Aboriginal communities within the proposed licence site.
DIA documents provided by the Government party and the native title party reveal no sites or communities within the proposed licence site.
Government party documents indicate that Indigenous Owned Lease 3114/1109 (Lamboo) overlaps the proposed licence by 85.8%. It is the only currently active lease or tenement that overlaps the area.
According to the list of tenements in the Quick Appraisal, there has been previous mineral exploration activity in the area of the proposed licence site since 1974. Eleven dead tenements overlap the proposed licence site. Of these, two were surrendered, seven were withdrawn, one was cancelled and one was forfeited. There is no current exploration activity in the proposed licence site.
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). According to documents provided by the Government party, these four conditions, and the following two other conditions, will regulate the exploration activities on the current proposed licence site:
5 The 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.
According to Government party documents, the following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach) will be imposed:
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.
Evidence provided by the native title party
The native title party has provided the following documents:
·A statement of contentions of the Lamboo People signed and dated 29 September 2010; and
·An affidavit from Mr Stan Brumby dated 22 September 2010, the signing of which was witnessed by Mr Robert James Powrie, a solicitor for the native title party representative body. Mr Brumby states he is one of the senior people for the Lamboo native title determination application (WAD 6095/98).
The statement of Mr Brumby is as follows:
1.My name is Stan Brumby. My Aboriginal name is Majaju. I have Jangari skin, or subsection identity. I was born around 1923 on Lamboo Station at a place called Jirdjidgi.
2.I am one of the senior people for the Lamboo Native Title Determination Application (WAD 6095/98).
3.I know the area where Kallenia Mines Pty Ltd, “the grantee party”, has applied for Exploration Licence Number E80/4295, “the Exploration Licence Area.” I have been shown maps of the Exploration Licence Area. I grew up in and around the Exploration Licence Area and my family and I still visit that area. The maps I was shown are attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The Exploration Licence Area falls on country I have to look after on Lamboo station, specifically the sacred sites of Ngunjuwiri and Jirdjidgi.
5.I visit the Exploration Licence Area to access cultural grounds. And to hunt and fish in the creeks.
6.There is good hunting and fishing in many parts of the Exploration Licence Area. We hunt Goanna- Jarambi, Kangaroo- Jaji, Procupine- Gunanunja, Bush Turkey- Bingirrljaru, and Emu inside the Exploration Licence Area. We use boomerangs and rifles to do our hunting there and we go as often as we can, sometimes we stay there for a whole week.
7.We also go fishing in the Exploration Licence Area, after rains and water holes fill up, we get bream and catfish.
8.I am responsible for the safety of all sacred sites in that area.
9.When I visit my country I also get all kinds of bush vegetables and bush medicines. For example I get Kulibi (bush banana) and Junda (bush onion) and Bura (bush potato) and I also get gum from mardiwah trees, which I like to chew to make my stomach good.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10.The area in the Exploration Licence falls on Lamboo Country. The name of that country is Dalang. Dalang is ‘jumping up’ to Gurumala at the top. There are a number of sacred sites in this area that are known to me from visiting and learning the songs that I must perform for ceremonies.
11.There is an area in the middle of the Exploration Licence Area that the grantee party can’t go to. There is one hill there, Bindi, only men can go there and they can’t go there without me. I’ve got to show them where they can go. Two fellows went there looking and smashed some rock at that place and they got sick and died.
12.They got waterholes right through the Exploration Licence Area. The main waterhole is Mudpa, they can’t go there without me, if they go there without me they’ll get sick. They can’t use the water there, they have to use other water. There is water that they can use but I have to show them where.
13.There are many places in my country, including the Exploration Licence Area, which are very important and have great significance in the traditional religion of my community. We follow Waljiri for our ceremony and law, which you whitefella’s call the dreamtime.
14.In the past, a sacred place where the Walburu- Carpet Snake lived was smashed up. They busted up the eggs for gravel and now that place is gone. He’s still there but he’s gone underground now that snake because they bust’em up those eggs.
15.We have lots of stories and songs about all of our Waljiri, many of which we can’t tell you about because you haven’t been initiated.
16.We are looking after all the importance places in our country. We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it.
17.Mining mob must come and see us and might be we will say No. Or we might talk with them and make an agreement.
MAJOR DISTURBANCE TO LAND OR WATER
18.I am aware of the activities which the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the Exploration Licence.
19.White people and strangers must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. That’s why we are frightened if strangers arrive in our country uninvited. They might get sick or paralysed if they touch any sacred site. We know that strangers don’t follow our Law, that’s why they have to slow down and come and meet with us.
20.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law. That’s why we are frightened about white people strangers coming to our country because they just jump in anyway.
21.If strangers damage a site, artefact or other important place or thing, we feel very upset you know. We feel very sad, like someone close to us has died. It’s the same thing for country.
22.If blackfellas damage any important places or things in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.
23.Strangers cannot help themselves to our country. They have got to ask us first. If we say, No, they must leave our country, but if we say, Yes, they can stay and talk with us. If they make money out of my country, they can maybe give my community a little bit because they are taking something from our country our land.
24.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings. If we say ‘Yes’ to drilling, we expect something to come back to us, like help making a road and helping my community. This is because we are looking after this country, not strangers.
Evidence provided by the grantee party
The grantee party has provided the following documents:
· A statement of contentions dated 28 September 2010.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of E80/4295 and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking 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]).
The native title party contentions state that the mere existence of the grantee party on the land could lead to interference (at 14). The grantee party contentions rebut this argument (at 14 and 20). In my view, something more than the mere existence of the grantee party must be shown to indicate direct interference in the area that is substantial and not trivial.
The native title party states (at 36) that the grant of the tenement would cause ‘major disturbance’, but the particulars of this disturbance (listed at 37) refer only to the need to ask permission under Lamboo Law before coming onto the land, and strangers ‘causing problems.’
Apart from two sites (Mudpa and Bindi) discussed later in this determination, there is no reference to the precise location of significant sites within the proposed licence site, the frequency with which social and community activities might occur at those sites or in general within the proposed licence site, who does the social and community activities, or the extent to which social and community activities occur on the proposed licence site. For example, Mr Brumby states:
·‘The Exploration Licence Area falls on country I have to look after...’ (at 4)
·‘There is good hunting and fishing in many parts of the Exploration Licence Area...and we go as often as we can, sometimes we stay there for a whole week’ (at 6)
·‘When I visit my country I also get all kinds of bush vegetables and bush medicines’ (at 9)
·‘The area in the Exploration Licence falls on Lamboo Country...There are a number of sacred sites in this area that are known to me from visiting and learning the songs that I must perform for ceremonies’ (at 10)
·‘There is a hill called ’Bindi, only men can go there...’ (at 11), and a waterhole ‘Mudpa, they can’t go there without me...’ (at 12)
·‘There are many places in my country, including inside the Exploration Licence Area, which are very important and have great significance in the traditional religion of my community...’ (at 13), and “...we have got a lot of very special places on my country, from our old-time people and from the early days...’ (at 19).
In Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner, (‘Cooke’) native title party evidence stated that there were law grounds in use for men’s ceremonies in and around a proposed licence area. The Tribunal accepted there was some contemporary and ongoing activity and that these activities occurred over a much wider area than the proposed licence site. The evidence was found not to be specific enough to support a finding of sustained community or social activities on that licence site (at [22]-[23]).
The proposed licence site is for exploration activities only. A mining lease would be required for any mining activities, under a separate future act procedure. The grantee party states (at 13) that they will not gain exclusive possession of the area of the proposed licence site if the licence is granted, and that any restrictions on the native title party’s community or social activities would be limited to the area where exploration was taking place at any one time, for safety reasons.
In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner, (‘Wilma Freddie’) affidavit evidence on behalf of a native title party indicated access was regular but provided only general information on the present activities of the claim group. The Tribunal found [at 11 & 13] the requisite level of interference with social and community activities was unlikely as there was little specific evidence of the activities carried out over the area.
The size of E80/4295 is 67.96 square kilometres and the area of the Lamboo claim is 4028.849 square kilometres. Consistent with previous Tribunal decisions such as Cooke, I find that the size of the proposed licence area in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).
Taking all these factors into account I find that the exploration activity is unlikely 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 (i.e. more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows no registered sites within E80/4295, but this does not mean there may not be 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 protects all Aboriginal sites, whether on the Register or not.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (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 Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. 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 [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [30]-[34] (‘Champion’).
The native title party contentions (at 20 and 29) state that the proposed licence area is site rich but the location of the sites are confidential and so are not listed on the DIA register. The grantee party contentions (at 20) dispute that there is evidence the proposed licence area is site rich, relying on the fact that there are no registered sites within the area. I have no difficulty in accepting the native title party argument that there are likely to be sites of significance within and around the proposed licence area, based on the fact that such sites do not need to be registered, and based on Mr Brumby’s affidavit which attests directly to sites in ‘the Exploration Licence Area’ (at 11, 12 and 13). Mr Brumby does identify one site quite specifically (at 11) which is a hill known as ‘Bindi...in the middle of the Exploration Licence Area.’ Mr Brumby also identifies a waterhole (known as ‘Mudpa’) which he states people cannot go there without him, but he does know of other waterholes which could be used (at 12).
In relation to the hill site, Bindi, identified by Mr Brumby, the grantee party accepts that ‘to the extent that this place may be an area of particular significant [sic] and importance, the area can and will be avoided by the Grantee Party’ (at 19(h)) [emphasis added].
In relation to the Mudpa waterhole, the grantee party does not accept this is a site of significance but states that ‘due to the nature of exploration activities, the Grantee Party is highly unlikely to conduct exploration activities at a water hole’ (at 19(i)). I have no difficulty in accepting Mr Brumby’s evidence in relation to the Mudpa waterhole that it is a site of significance, as he has sworn on oath that ‘They got waterholes right through the Exploration Licence Area. The main waterhole is Mudpa...’ (at 12) [emphasis added]. This seems to place Mudpa within the proposed licence area. The grantee party is now on notice that this site of significance may exist within the proposed licence area, and I accept their statement that it is unlikely to be interfered with.
The grantee party contentions (at 19(k)) state that the native title party refer to a sacred place known as Walburu in paragraphs 14 and 15 of Mr Brumby’s affidavit. However, on close reading of the affidavit, it appears that Walburu is not the place, but refers to the Carpet Snake who lives in a sacred place. That is, Walburu is the Carpet Snake, not the place where the Carpet Snake lives. Neither Mr Brumby’s affidavit evidence, nor the native title party contentions sufficiently identify the place where the Walburu lives as being on the proposed licence site.
The native title party contentions state that the mechanisms in the AHA do not require that any holders of native title be consulted before using the land for purposes which would breach s 17 of that Act (at 25). In their contentions (at 26 and 33), the grantee party has indicated that they are willing to enter into what they refer to as a Standard Regional Heritage Agreement (also known as a Regional Standard Heritage Agreement ‘RSHA’) if required to do so by the native title party. However, there is no RSHA for the Kimberley region so this offer has no practical effect. The grantee party indicate that Government evidence shows that there has been previous exploration in the proposed licence area and I accept this based on the DMP Quick Appraisal which shows activity since 1974. I accept that, given the protective effect of sections of the AHA, the chance of interference is remote (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [75]-[77], (‘Little’)).
In Wilma Freddie, there was no evidence from the grantee party as to its site protection plans, and the Tribunal determined the act was not an act attracting the expedited procedure. In the present matter, there are statements in the grantee party contentions as to its willingness to avoid the Mudpa and Bindi sites and to act in accordance with the AHA. I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. The grantee party has stated that it understands its obligations under the AHA and will comply with it. I accept that the grantee party intends to act lawfully and in accordance with the AHA.
I find that there is not likely to be a real risk of interference with any 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 (Little at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Government party contentions at paragraph 5(d) indicate that the following 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 Lamboo, the applicants in Federal Court application no. WAD 6095 of 1998 (WC99/20), such request being sent by pre-paid post to reach the Licensee’s address, PO Box 884, Victoria Park WA 6100 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Lamboo such Regional Standard Heritage Agreement endorsed by peak industry groups offered by the Kimberley Land Council.
I note that, as there is no RSHA for the Kimberley region, this condition has no practical effect.
Similarly, the grantee party contention (at 26) that it is willing to enter into a RSHA if requested to do so by the native title party has no practical effect.
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 [74]-[79] and the cases cited therein).
In this matter, the proposed licence is 116 kilometres south west of the town of Halls Creek. In relation to s 237(c), the native title party contentions state (at 36): ‘There are within the tenement area sites which are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorized persons may not be present at them...The grant of the tenement in these circumstances will cause a major disturbance.’. The particulars outlined in support of this contention (at 37) are quite broad, stating that ‘Under Lamboo Law, anyone who is not from the country included in the tenement area must ask permission before coming onto country, because of the many places of significance on country per paragraph 19 of the affidavit of Stan Brumby.’ Mr Brumby’s affidavit (at 19) does not identify specific places or likely disturbances, rather stating that ‘White people and strangers must ask for permission before coming onto my country...’
There is no evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely. The area of E80/4295 has been the subject of past and present exploration and /or mining activities. 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.
I find that there is not likely to be major disturbance to land or waters in this matter.
Determination
The determination of the Tribunal is that the grant of exploration licence E80/4295 to Kallenia Mines Pty Ltd (grantee party) is an act attracting the expedited procedure.
Helen Shurven
Member
4 February 2011
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