Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Sirius Resources NL

[2011] NNTTA 63

NATIONAL NATIVE TITLE TRIBUNAL

Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Sirius Resources NL [2011] NNTTA 63 (7 April 2011)

Application No:              WO10/1404

IN THE MATTER of the Native Title Act 1993 (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) (Applicant, native title party)

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The State of Western Australia (Government party)

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Sirius Resources NL (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  7 April 2011

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, 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

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

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

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

Representative of the     

native title party:            Ms Dorothy Tucker, Narnoobinya Family Group

Representatives of the     Mr Rod Wahl/Ms Shelley Moore, State Solicitor’s Office

Government party:         Mr Dennis Jacobs, Department of Mines and Petroleum

Representative of the     

grantee party:                 Mr Eamon Cornelius, Western Tenement Services

REASONS FOR DETERMINATION

1. On 28 July 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 E63/1372 (the proposed licence) to Sirius Resources NL (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

2. The proposed licence comprises an area of 31.88 square kilometres located 91 kilometres East of Norseman in the Shire of Dundas.  It is 100 per cent within 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).

3. On 12 October 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. Dorothy Anne Tucker is one of the persons named as an applicant in the Narnoobinya Family Group native title claim but now goes under the name of Dorothy Ann English.

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 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 included that the Tribunal be provided with contentions and documents of the: State by 21 March 2011; native title party by 28 March 2011; and grantee party by 4 April 2011.

5. On request of the grantee party, compliance dates were brought forward, with the final compliance dates being: 24 January 2011 for the State; 31 January 2011 for the native title party and 7 February 2011 for the grantee party.

6. The Department of Mines and Petroleum (DMP) provided documents on 7 January and the Government party lodged its contentions and evidence on 11 January 2011. The native title party lodged its contentions on 2 February 2011. At the listing hearing on 10 December 2010, the grantee party advised that they would be relying on the contentions and evidence provided by the State. There were no objections to accepting the native title party contentions outside of the compliance date, and I accept and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act.

7. All parties agreed 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 (as per s 151(2) of the Act). On 31 March 2011, I was appointed by Hon C J Sumner as the Member for the purposes of conducting the inquiry.

Legal principles

1. Section 237 of the Act provides:

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 the nature of exploration and prospecting licences and conditions to be imposed. He considered the activities that are permitted by such licenses 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.

2. Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (DMP). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 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.

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).

Evidence in relation to the proposed act

1. Government party documents include: a tengraph plan with topographical detail; tenement boundaries and historical land tenure; a copy of the stamped application for mining tenement; a tengraph Quick Appraisal; and a draft tenement endorsement and conditions extract.

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

   ·Crown Reserve (17.2 per cent overlap);

   ·Pastoral Lease 398/815 (SOUTHERN HILLS) (82.8 per cent overlap).

3. A map prepared by the Tribunal’s geospatial services on 23 March 2011, confirms that there are no Aboriginal communities within or in the vicinity of the proposed licence area and DIA documents provided by the Government party reveal no registered sites under the Aboriginal Heritage Act 1972 (WA) (AHA) within the proposed licence area.

4. Government party documents indicate that there is one pending tenement application that encroaches the proposed licence area by 45.4 per cent. There is evidence of previous mineral exploration activity between 1996 and 2001, with eight dead tenements that overlap the proposed licence area by between 0.7 per cent and 63.6 per cent.

5. 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). According to documents provided by the grantee and Government party, these 4 conditions, and the following 3 other conditions, will regulate 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.

   6.The 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.

   7.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation of Flora and Fauna Reserve 36957

6. The following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach) will be imposed:

   1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder; and

   2.The 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.

7. The material provided by the native title party relating to the proposed act is comprised solely of contentions signed and lodged electronically.  No affidavit evidence has been lead by the native title party.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (Smith). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).

2. The evidence establishes that exploration activity has occurred in the area of E63/1372 since at least 1996 and that pastoral activities are conducted on 82.8 per cent of the area. I accept that these activities will already have interfered to some extent with any traditional community or social activities of the native title party.

3. In the similar fact matter of Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Image Resources NL, NNTT WO09/1024, [2010] NNTTA 99 (12 July 2010) (‘Tucker’) Hon C J Sumner states at [25]:

   The contentions of the native title party (at page 6) identify that the native title party has connection to the area of land pertaining to the proposed licence which includes connections maintained through hunting game, collecting bush food and medicines, as well as looking after and maintaining sites. The contentions refer to hunting kangaroo, emus, goanna, bobtails and gathering bardie grubs, quandong, gulgulas, ngadjun, ‘pig face’ and other berries. Generations of the native title party are said to have performed ceremonies and gathered food in the area and been employed in station activities. Although these contentions identify some community and social activities of the native title party they are not specific as to how often they are carried out or the number of persons involved. The reference to past generations does not assist to provide specific evidence of contemporary activities.

In the matter at hand, the contentions also make broad assertions about the kinds of activities that are stated to occur on the land or which have occurred in the past. The contentions do not particularise when, where or how the community or social activities occur or who is involved.  For example, the native title party contentions state that ‘The proposed tenement affects previously undisturbed country that has only ever been travelled by foot or horseback’ (at page 7), whereas the DMP evidence indicates previous exploration and pastoral activity, as well as 5 tracks and a fence line, suggesting the country has previously been disturbed.  In order to substantiate the claims made in the native title party statement of contentions, particulars of the community or social activities are needed, and supporting evidence, such as affidavits, as a primary source of evidence, would also assist.

1. The size of the proposed licence is 31.88 square kilometres and the area of the Narnoobinya Family Group claim is 64,166.12 square kilometres. Consistently with previous Tribunal decisions, including the Hon C J Sumner’s reasoning in Tucker, I find that the size of the proposed licence area in the context of the much larger native title claim area makes it less likely that the proposed exploration activity will interfere with whatever community or social activities are carried out by the native title party.

2. The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place, as significant ground disturbing exploration will only occur at any one time over a small area. In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way. I believe this is such a case.

3. Taking all of these factors into account I find that the exploration activity is not 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))

1. The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows no registered sites within E63/1372, but this does not mean there may not be other sites or areas of particular significance to the native title party over E63/1372 or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.

2. 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 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.

3. The native title party contentions state that their ‘country is crossed with ancestral travelling routes, which were overlaid with modern tracks and roads. Thus, gaining access to the tenement and using the roads in the surrounding areas may compromise the continuation of traditional activity, which consisted of following the dreaming tracks between rock holes and other water sources’ (at page 7). This is a general statement that does not particularise where the ancestral travelling routes are located or include an explanation as to whether the routes are sites of particular significance to the native title party. The contentions state that the ancestral travelling routes have been overlaid with modern tracks and roads. Considering the exploration activity which has already occurred over E63/1372, and the continuation of pastoral lease activity in the area, it is likely that roads and tracks which exist within the proposed licence area, have and/or are currently used by the native title party as well as by people other than members of the native title party.

4. The native title party contentions also state that ‘the proposed tenement is located within an area where little archaeological and ethnographic evidence has been obtained and reported upon, and which is highly sensitive and important to the people. The absence of officially reported sites and associated reportage cannot support the inference that sites do not exist. The likelihood of their existence is high, given the preponderance of sites of significance within the southern Goldfields region in general. The Native Title party consider that many of these sites and stories have been kept secret. Further, ochre deposits are known to exist in the area, and their locations are also considered to be restricted information’ (at page 7). Government party documents show that a DIA survey has been carried out over the whole of E63/1372 and that no sites of significance are recorded. As previously mentioned, at [25], I accept that the absence of officially reported sites does not mean that sites do not exist in the area. I also accept that the secret nature of sites may prevent them from being registered with the DIA. According to Geospatial mapping provided by the Tribunal, the closest DIA registered sites to E63/1372 are approximately 6 to 12 kilometres from the boundary of the proposed licence. The native title party is very broad in the statements relating to the existence of sites and ochre deposits rather than pointing to particular sites within the proposed licence area. No primary evidence is provided to show that such sites exist within the area, and the native title party contentions refer to ‘Much of the country between Norseman and Israelite Bay contains sacred sites...’ (at page 7) which is a very large area of approximately two hundred kilometres. The information provided is not sufficient to establish a real possibility of significant sites, including sites associated with stories and ochre deposits, being interfered with.

1. The native title party contentions assert that unless the grantee party engages with the native title party and agrees to conduct a heritage protection survey, sites of cultural significance may be damaged or interfered with, and this will damage the native title party’s cultural heritage and connection with that country. In relation to the area between Norseman and Israelite Bay, the native title party contends that it ‘contains sacred sites, and stories of ancestral spirits are still known, including jinaguthy, Girrakulba, and Kadaicha/Kundaitcha men (‘feathered foots’). Moreover, the sites contained within this stretch of country consist of blowholes, lakes, old campsites, rock paintings and water holes’ (at page 7).

2. The native title party is required to provide evidence in sufficient detail and specificity in order to allow the Tribunal to make the predictive assessment in accordance with s 237(b) of the Act. There is limited evidence from the native title party (or otherwise) as to the existence of any Aboriginal sites specifically within the proposed licence area, and there is no basis for making a finding that any sites of particular significance to the native title party exist within the proposed licence area. I accept that the protective regimes under the AHA and the presumption of regularity should be sufficient to ensure that there is unlikely to be interference with any sites of particular significance which may exist.

3. I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. 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 Regional Standard Heritage Agreement (RSHS) (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (‘Champion’) at 386-388 [30]-[34]). Annexed to the Government party contentions is a Statutory Declaration of the grantee party representative referring to an offer to enter into a RSHA with the Ngadju People, over the same exploration licence area (E63/1372). The DMP only requires a RSHA to be signed in respect of one native title party where there is more than one overlapping claim. As such, the Government party has not made it a condition to the grant of the proposed tenement that the grantee party offer the Narnoobinya People a RSHA. That the grantee party has executed a RSHA with the Ngadju People illustrates its willingness to enter into agreement with native title claimants. It also demonstrates that the grantee party is aware of its obligations and is prepared to comply with Government policy and the regulatory regime in relation to the protection of Aboriginal sites.

4. 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 (s237(c))

1. 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 & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).

2. 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 386-388 [74]-[79] and the cases cited therein).

3. The native title party contends that ‘the grant of the proposed tenement over the ground applied for will create rights the exercise of which will involve major disturbance to the land. This includes the right to drill holes and excavate material, along with other rights as defined in the Mining Act.’  They also contend that ‘the removal of up to 500 tonnes of materials as is allowed by the Mining Act may constitute a major disturbance to the land,’ and that ‘access to the tenement may be dependent on increased 4WD and other heavy vehicle traffic over a fragile environment, and may involve carving new tracks through previously undisturbed country’ (at page 8).

4. The native title party have not provided any evidence to suggest there are any exceptional factors specific to the proposed licence site to lead to a finding that major disturbance is likely. The area of E63/1372 has been the subject of previous exploration and ongoing pastoral activity. 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, including the conditions and endorsements that will apply. In this case, I find that there is not likely to be major disturbance to land or waters or the creation of rights which would do so.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E63/1372 to Sirius Resources NL, is an act attracting the expedited procedure.

Helen Shurven
Member
7 April 2011