Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Anglogold Ashanti Australia Ltd
[2010] NNTTA 135
•19 August 2010
NATIONAL NATIVE TITLE TRIBUNAL
Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Anglogold Ashanti Australia Ltd, [2010] NNTTA 135 (19 August 2010)
Application No: WO10/162
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
Dorothy Tucker on behalf of the Narnoobinya Family Group (WC97/40) (native title party)
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The State of Western Australia (Government party)
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Anglogold Ashanti Australia Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 19 August 2010
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
Aboriginal Heritage Act 1972 (WA)
Cases:Dorothy and Thelma Tucker on behalf of the Narnoobinya FamilyGroup/Western Australia/Comet Resources Ltd, NNTT WO04/252, [2005] NNTTA 38 (31 May 2005), Daniel O’Dea
Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Image Resources NL, NNTT WO09/1024, [2010] NNTTA 99 (12 July 2010), Hon C J 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), Hon C J Sumner
Representative of the
native title party: Ms Dorothy Tucker, Narnoobinya Family Group
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Ms Khalida Popal, Anglogold Ashanti Australia Ltd
REASONS FOR DETERMINATION
On 10 February 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 E63/1369 (the proposed licence) to Anglogold Ashanti Australia Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence comprises an area of 46.59 square kilometres located 97 kilometres easterly of Norseman in the Shire of Dundas. It is entirely overlapped by the registered native title claims of the Narnoobinya Family Group (WC97/40 – registered from 4 June 1997) and the Ngadju People (WC99/2 – registered from 28 September 2000).
On 11 February 2010, Dorothy Tucker on behalf of the Narnoobinya Family Group (WC97/40) (the native title party) lodged an expedited procedure objection application with the Tribunal. No objection was lodged by the Ngadju People.
In accordance with standard practice the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections (10 June 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
During the preliminary conference on 23 March 2010 the grantee party advised that Anglogold Ashanti Australia Ltd had executed the Regional Standard Heritage Agreement (RSHA) with Ngadju in accordance with Government party policy that an agreement addressing heritage protection be offered to one registered claimant overlapping the proposed licence. The grantee party requested the matter proceed to determination by the Tribunal and accordingly, at the request of the native title party, I amended directions to expedite the inquiry.
The Government party lodged its contentions and evidence by 5 July 2010; the native title party lodged its contentions and unsworn affidavit on 9 July 2010; and the grantee party lodged its contentions on 13 July 2010. At the listing hearing on 22 July 2010, all parties agreed that the unsworn affidavit of Dorothy English (Tucker) could be accepted into evidence as a witness statement and that this matter could be determined ‘on the papers’ (i.e. without holding a hearing). I am satisfied that the objection can be adequately determined in this way (s 151(2) of the Act).
Evidence in relation to the proposed act
Government party documentation establishes the underlying land tenure on the proposed licence to be 100 per cent Vacant Crown land.
A map prepared by the Tribunal’s Geospatial section confirms that there are no Aboriginal communities within or in the vicinity of the proposed licence area and Department of Indigenous Affairs (DIA) documents provided by the Government party reveal no registered sites under the Aboriginal Heritage Act 1972 (WA) (AHA) within the proposed licence area.
Government party documents indicate that no live or pending applications encroach or overlap the proposed licence area, however, there is evidence of previous mineral exploration activity between 1991 and 2003.
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 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 at [21] Conditions 1-4).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed:
1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and
2.The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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.
The Government party proposes to place the following condition 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 Ngadju, the applicants in Federal Court application no. WAD6020 of 1998 (WC99/2), such request being sent by pre-paid post to reach the Licensee’s address, PO Box Z5046, Perth WA 6831 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Ngadju the Regional Standard Heritage Agreement endorsed by peak industry groups and the Goldfields Land and Sea Council.’
The grantee party contends that it intends to comply with all relevant legislative requirements, including Aboriginal heritage and mining regimes. The grantee believes that the subject area is prospective for gold and asserts that disturbance to the land will be kept to a bare minimum while undertaking its investigations. It cites ‘an excellent track record in respect to working proactively with indigenous people’ and in respect of ‘Native Title compliance’ and relies on its offer of the RSHA to Ngadju to evidence its compliance with relevant heritage legislation.
Contentions and evidence provided by the native title party
The contentions and evidence of the native title party are in the same terms as those lodged for the purposes of a previous inquiry into an expedited procedure objection application lodged by the Narnoobinya Family Group except for changes to the details of the proposed licence and grantee party (Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Image Resources NL, NNTT WO09/1024, [2010] NNTTA 99 (12 July 2010), Hon C J Sumner). The Tribunal determined that the expedited procedure was attracted. The affidavit of Ms Dorothy Tucker is fully set out at para [20] of the Reasons for Determination in WO09/1024 and there is no need to repeat its terms for the purposes of these reasons. Ms Tucker’s evidence is uncontested and I accept it. She is listed as one of the persons comprising the Narnoobinya Family Group applicant for native title and I am satisfied that she has authority to speak for country on behalf of the native title party.
The material provided by the native title party included contentions lodged electronically and filed personally by Ms Tucker although unsigned. As these were filed personally by Ms Tucker I have accepted as evidence some aspects of them where they deal with matters of fact.
In WO09/1024 (at [39]) I observed that the evidence provided by Ms Tucker was in substantially the same terms as that provided on behalf of the Narnoobinya native title party by Thelma Vera Tucker in an earlier expedited procedure objection matter in which Member O’Dea found that the evidence was an insufficient basis for a determination that the expedited procedure was not attracted (Dorothy and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Comet Resources Ltd, NNTT WO04/252, [2005] NNTTA 38 (31 May 2005), Daniel O’Dea (at 23)).
The facts of the present matter are not different in any significant way from those in WO09/1024 or WO04/252 and I find again that the evidence provided is an insufficient basis for a determination that the expedited procedure is not attracted. Section 146(b) of the Act permits the Tribunal in its discretion to adopt any report, findings, decision, determination or judgment of the Tribunal (among other bodies) that may be relevant to the inquiry. In my view it is appropriate to deal with the present matter by adopting relevant findings from WO09/1024.
The details of the findings adopted from WO09/1024 are as follows:
Legal principles – paragraphs [8]-[11];
Community or social activities (s 237(a)) – paragraphs [23]-[29], with the exception that in the present matter the size of the proposed licence is 46.59 square kilometres and there has been no pastoral activity as it is Vacant Crown Land.
Sites of particular significance (s 237(b)) – paragraphs [30]-[35], [38].
Major disturbance to land and waters (s 237(c)) – paragraphs [39]-[41], with the exception of the reference to the proposed licence number and pastoral activity.
In the present matter based on the findings adopted from WO09/1024 I find that the act is an act attracting the expedited procedure as the grant of the proposed licence and activities carried out pursuant to it are not likely to:
interfere directly with the carrying on of the community or social activities of the native title party (s 237(a));
interfere with areas or sites of particular significance to the native title party in accordance with their traditions (s 237(b)); or
involve major disturbance to any land or waters concerned or create rights whose exercise is likely to do so (s 237(c)).
Determination
The determination of the Tribunal is that the grant of exploration licence E63/1369 to Anglogold Ashanti Australia Ltd, is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
19 August 2010
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