Eva J Connors on behalf of Eastern Guruma People/Western Australia/Flinders Diamonds Ltd
[2007] NNTTA 62
•16 July 2007
NATIONAL NATIVE TITLE TRIBUNAL
Eva J Connors on behalf of Eastern Guruma People/Western Australia/Flinders Diamonds Ltd, [2007] NNTTA 62 (16 July 2007)
Application Nos: WO06/604; WO06/605; WO06/606; WO06/607
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Eva J Connors on behalf of Eastern Guruma People – WC97/89 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Flinders Diamonds Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 16 July 2007
Catchwords: Native title – future acts – proposed grant of prospecting licences – expedited procedure objection application – not likely to be interference with the carrying on of community or social activities, sites of particular significance or major disturbance to land – act attracts the expedited procedure
Legislation:Native Title Act 1993 (Cth) ss 29, 151(2), 237
Mining Act 1978 (WA) s 63
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18
Cases:Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Cheinmora v Striker Resources NL & Ors, [1996] 1147 FCA 1; (1996) 142 ALR 21
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
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 Banyima People v State of Western Australia [2007] FCA 1027
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTA 62 (9 April 2003), John Sosso
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Government party: Ms Jan Mason, Department of Industry & Resources
Representative of the
grantee party: Mr Warwick Newton, Flinders Diamonds Ltd
REASONS FOR DETERMINATION
Background
On 8 November 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P47/1288, P47/1289, P47/1290 and P47/1291 (‘the proposed licences’) to Flinders Diamonds Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is an act which can be done without the normal negotiations required by s 31 of the Act).
On 14 November 2006, Eva Connors on behalf of Eastern Guruma People (Registered Native Claim WC97/89 from 7 February 2000 and at that time the ‘native title party’ in these proceedings) made an expedited procedure objection application to the Tribunal relying on all three limbs of s 237 of the Act. On 1 March 2007 the Federal Court made a native title determination in respect of the claim that the Wintawari Guruma Aboriginal Corporation as the Prescribed Body Corporate holds non exclusive native title in trust for the native title holders in respect of the areas covered by parts of the previously registered claim including the area which overlaps the proposed licences. The Wintawari Guruma Aboriginal Corporation is now the native title party in these proceedings and the Eastern Guruma determination entirely overlaps all four proposed exploration licence areas.
Details of the proposed licences are as follows.
Proposed licence P47/1288 comprises an area of 175.48 hectares, 76 square kilometres, 76 kilometres north westerly of Tom Price in the Shire of Ashburton.
Proposed licence P47/1289 comprises an area of some 176.88 hectares, 68 kilometres north westerly of Tom Price in the Shire of Ashburton.
Proposed licence P47/1290 comprises an area of some 23.22 hectares, 65 kilometres north westerly of Tom Price in the Shire of Ashburton.
Proposed licence P47/1291 comprises an area of some 23.43 hectares, 79 kilometres north westerly of Tom Price in the Shire of Ashburton.
Conduct of the inquiry
In accordance with its normal Procedures under the Right to Negotiate Scheme, on 28 November 2006, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. The directions also allowed a four month period from the s 29 objection closing date (8 March 2007) for parties to negotiate or finalise agreement over the grant of the tenement via the expedited procedure process. These directions were amended on 15 December 2006 to bring the compliance dates forward, as by this time it had become apparent that the matter was likely to go to inquiry.
The Government party has complied with directions, and the grantee party has indicated its intention to rely on Government party contentions and provided copies of correspondence between it and Mr Jerome Frewen the native title party’s representative. On 8 May 2007 the Tribunal received, after some delays to which the other parties consented, a statement of Ms Eva Connors on behalf of the native title party in the form of an affidavit which is signed but does not appear to have been sworn before an authorised witness. I am prepared to accept as evidence Ms Connors’ unsworn affidavit (Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362 (at [13]-[18]). No other contentions were provided by the native title party. I am satisfied that I can adequately deal with the matters on the papers in accordance with s 151(2) of the Act.
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’), the Tribunal considered the applicable legal principles (at [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 [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that Standard Condition 2 to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources. 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 [32]–[41] (see also Parker on behalf of the Martu Idja Banyima People v State of Western Australia [2007] FCA 1027 a Federal Court decision made on appeal from the Tribunal’s decision in Maitland Parker).
Evidence in relation to the proposed act
Department of Industry and Resources (‘DoIR’) evidence reveals that the area of each of the proposed licences lies wholly within the determined area of the Eastern Guruma claim, over which the native title holders possess non-exclusive rights and interests. In relation to each of the proposed licences the land is also affected as follows:
P47/1288 – a Water Reserve overlaps the entire area of the proposed licence area;
P47/1289 – four Threatened Ecological Community Buffer Zones overlap the proposed licence area to an extent of 57 per cent, 54.8 per cent, 43.8 per cent and 60.1 per cent respectively, and a Water Reserve overlaps the entire area of the proposed licence area;
P47/1290 – four Threatened Ecological Community Buffer Zones each overlap the entire area of the proposed licence area, and a Water Reserve also overlaps the entire area of the proposed licence area;
P47/1291 – a Water Reserve overlaps the entire area of the proposed licence area.
There are no Aboriginal communities in the vicinity of the subject areas and the Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) does not document any registered sites on or in the immediate vicinity of the proposed licences.
The mapping documentation provided by the Government party shows exploration interest in the area of the proposed licences and adjacent to them.
In relation to P47/1288, the Tengraph Quick Appraisal generated on 12 March 2007 shows two active exploration leases overlapping or abutting the subject area. The list of dead tenements affected shows one exploration licence, which was granted and active between 1993 and 1994 and four temporary reserves (titles similar to exploration licences granted pursuant to s 276 of the Mining Act 1904 (WA)), which were variously granted and active between 1960 and 1979. The area has been subject of some exploration and there is continued interest in the area.
In relation to P47/1289, the Tengraph Quick Appraisal generated on 12 March 2007 shows one active exploration lease overlapping the subject area. The list of dead tenements affected shows one exploration licence, which was granted and active between 1993 and 1994 and six temporary reserves, which were variously granted and active between 1960 and 1979. The area has been subject of some exploration and there is continued interest in the area.
In relation to P47/1290, the Tengraph Quick Appraisal generated on 12 March 2007 shows one active exploration lease overlapping the subject area. The list of dead tenements affected shows one exploration licence, which was granted and active between 1994 and 1997 and five temporary reserves, which were variously granted and active between 1960 and 1988. The area has been subject of some exploration and there is continued interest in the area.
In relation to P47/1291, the Tengraph Quick Appraisal generated on 8 March 2007 shows one active exploration lease overlapping the subject area. The list of dead tenements affected shows three temporary reserves, which were variously granted and active between 1960 and 1988. The area has been subject of some exploration and there is continued interest in the area.
The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Maitland Parker at [21], Conditions 1-4). They will also be subject to conditions and endorsements specific to the grant including a number of conditions concerned with access, safety, infrastructure construction and mining activities in the vicinity of Public Drinking Water Source Areas. The endorsements also draw the grantee party’s attention to, inter alia, the Environmental Protection Act 1986, Environmental Protection (Clearing of Native Vegetation) Regulations 2004 and the Water and Rivers Commission Act 1995.
The Government party will impose the following additional 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 Eastern Guruma People, the applicants in Federal Court application no. WAD 6208 of 1998 (WC97/89), such request being sent by pre-paid post to reach the Licensee’s address Post Office Box 3126, Norwood SA 5067 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Eastern Guruma People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara Native Title Service.’
Native title party contentions and evidence
The signed statement of Ms Eva Connors is set out hereunder in full.
‘Affidavit of Eva Connors
I, Eva Connors of Karratha, in the State of Western Australia, being authorised member of the Windiwari Guruma Aboriginal Corporation, the Prescribed Body Corporate for the Eastern Guruma People, being duly sworn make oath and say as follows:
1. That I am a members of the Governing Committee of the Windiwari Guruma Aboriginal Corporation (WGAC) the Prescribed Body Corporate of the Eastern Guruma People.
2. The Eastern Guruma People received their determination of native title in relation to the area of land and waters on 1 March 2007, when Bennett J of the Federal Court handed down her decision acknowledingand which land and waters is affected by the application of the Grantee Party for Prospecting Licences P47/1288-91;
3. The company has applied for 4 prospecting licences some 7-10 km or so north or north-west of Mt Jack, This name was given to the land feature and was my late father’s name. My late father knew all the songs and dances for this area, and the legends surrounding all of the natural features. These songs and dances were handed down to myself, or my brother Kenzie.
4. Aboriginal traditional religion, whose practices and doctrines our people follow, is a land-based religion, that is, its shrines, holy places and places associated with our ancestors are part of the land and are often not marked or obvious to people not of our religion or of our beliefs;
5. Aboriginal religion distinguishes between the roles, duties and obligations of men and women. That is not to say that one is inferior to the other or less important than the other. Both men and women have a role in the Aboriginal religion and in carrying on the traditions of the creation time which is called in English the Dreaming. Both men and women share certain sacred places on the land, but both men and women also have their own special places.
6. Damage to sacred places on the land will take from, or sometimes destroy, the spirituality in the land. If that happens then the elders of the group in whose land the damage has occurred have failed in their duty to maintain the spirituality of the land and to pass that on undamaged to the next generation, and will be subject punishment for not appropriately guarding the land. This punishment can take various forms, from spearing to loss of privileges, and will be irrespective of the circumstances under which the land was damaged.
7. Some of the shrines and holy places on the land are specific to the group in whose lands they are located, that is, they refer only to ancestral or Dreaming persons or spirits who are associated only with that particular area. If damage occurs to these holy places which the senior men of the group had it in their power to prevent, then we believe that misfortune, illness and unexpected death will occur within the group. The blame for these occurrences will rest with those people who could and should have prevented the damage in the first place;
8. Some of the shrines and holy places on the land deal with ancestral or Dreaming spirits or persons who travelled extensively throughout the country and crossed and re-crossed the traditional lands of many different Aboriginal groups. We have traditional dances and song lines for our country, and any shrines or holy places associated with ancestral or Dreaming spirits or persons of this nature are located are held responsible by all other peoples associated with that particular Dreaming throughout the country for the protection from damage of those shrines and holy places. This is a duty that the people from each specific tract of traditional country cannot avoid. The blame for misfortune arising from negligence in looking after the Dreaming places will rest with those people who could and should have prevented the damage in the first place.
9. The Government of Western Australia has enacted the Aboriginal Heritage Act in order to, amongst other things, assist the traditional Aboriginal people of Western Australia in fulfilling their obligations to protect shrines and holy places on their land and also on the lands of their neighbours, should a threat be posed against shrines and holy places associated with a Dreaming that passes through the traditional lands of several different groups. However, the Department of Indigenous Affairs and Aboriginal Cultural Material Committee that administer the legislation can only act to protect places that they know about.
10. A great many shrines and holy places within our country are not registered with that Department or Committee because nobody has ever had cause to carry out that registration, either because the relevant Aboriginal people were never asked about a particular area within their traditional lands, or because there was no reason to register such places, as there was no threat to them. It is indicative of the fact that nobody has previously inspected that particular area for such sites.
11. The area applied for by Flinders Diamonds contains a number of sites known to myself and my brothers, uncles and close kin, for which we are held personally liable for their protection.
12. I am aware that the tenements contain, or are located in close proximity to, sites of extremely high cultural and historical significance to our people. There are at least two secret/sacred women’s Dreaming sites in the vicinity of Mount Jack and follow the Hamersley range. Information about these sites are confidential, and can only be disclosed to other members of the group permitted to receive this information. In the course of conducting heritage surveys, the location of such sites is disclosed, however the information about the significance of such sites would never be disclosed to a developer.
13. The group has offered to enter into a heritage agreement with the company, on exactly the same terms as applies to previous agreements with the company, and which also apply to other companies in the area. This agreement contains a heritage protocol which allows for the orderly conduct of surveys, enabling Flinders Diamonds to carry out its business once a work program survey identifies where the company can conduct its exploration; in the event that a site is identified, alternative places are agreed upon enabling the company to proceed.
14. The group has a standard fee for payment to its elders, in entering into these agreements. This standard fee is set so that companies are allowed to talk to elders about working on their country, and to enable the elders to consult with each other before giving their consent to a company to operate in their area.
15. The agreement provides for appropriately qualified elders to visit the area, accompanied by their archeologist and anthropologist, and with a company representative, to visit the leases in question, in order to demarcate and delineate the sites in question. The work should be carried out under prescribed conditions that are based upon the Eastern Guruma people’s Aboriginal heritage protocol, are clearly understood by all parties, and can be utilised by all parties for all future activities of the Company in the traditional lands of the Eastern Guruma people;
16. The company has previously entered into an agreement for other leases in the area, and has indicated it now refuses to enter into the same agreement with respect to these leases. This is unacceptable to myself, and my people, as clearly the company is not properly respecting the rights and wishes of our people, and is not prepared to deal consistently in relation to previous undertakings it has made to our people, and which were recorded through an agreement.
17. I therefore seek to have this matter go through the Right to Negotiate process of the Native Title Act, so that the company must sit down with our people at a properly constituted meeting and explain why it wishes to deal with us differently in this case, and why it wishes to have the licences granted without entering into our agreement.’
Ms Connors’ evidence is uncontested and, as a former named applicant for native title and now holder of native title I accept it and that she has authority to speak on behalf of the native title party.
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-451, [23]-[27]). The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed for exploration licences to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
Ms Connors’ statement provides virtually no evidence of the community or social activities of the native title party which could potentially be interfered with by prospecting activity. The evidence which might be regarded as related to this issue is confined to saying that ‘[m]y late father knew all the songs and dances’ for the area around Mt Jack (which is located approximately 10 kilometres south of the nearest of the proposed licence areas, and that ‘[t]hese songs and dances were handed down to myself, or my brother Kenzie’. Ms Connors’ statement does not provide evidence of any of the issues which are asserted to exist in para 7(b) of the objection application which states that the native title party continues to use the application area for a wide range of traditional activities. Further, it does not indicate whether or not there are any traditional activities which are contemporary and gives no specific information as to the frequency or numbers of persons involved in these activities or any specific location of those activities. In my view the evidence of the native title party in relation to s 237(a) provides no basis for a finding that the community or social activities of the native title party are likely to be directly interfered with by prospecting activities.
Because of the paucity of evidence the following additional factors are of less significance than they might be in other cases but comprise further reasons for my finding. First, access to the areas in question would be limited to the areas in which prospecting activity is taking place and temporary. The grantee party’s evidence (letter of 26 March 2007 from Warwick Newton, Tenement Manager, Flinders Diamonds Ltd to Mr Jerome Frewen, Desert Management Pty Ltd representing the native title party) is that the proposed licence areas comprise small strips of land between previously granted tenements, are not regarded as particularly prospective or of high priority and have been applied for to prevent nuisance pegging by others. Mr Newton says that it is likely that only low impact exploration will be undertaken involving geological mapping, geochemical sampling and possibly ground geophysical surveys. The area of the proposed licences is not extensive (ranging from 1.77 square kilometres to 0.23 square kilometres) when compared with the total area of the native title determination over which the native title party’s community and social activities might occur. (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso (at [43]-[44])).
Second, there is evidence of prior and existing mining exploration activities which will already have interfered with the activities, thus making it less likely that further operations will do so in a substantial and direct way (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]).
Third, the native title party contends by way of Ms Connors’ statement that the spirituality of the land and the social cohesion of the community will be destroyed by exploration activities (paras 6-8). The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at [12]): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’
Sites of particular significance (s 237(b))
The issue here 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 - Cheinmora v Striker Resources NL & Ors, [1996] 1147 FCA 1; (1996) 142 ALR 21 at [34]-[35]) significance to the native title party in accordance with their traditions. The fact that there are no sites recorded on the Register kept under the Aboriginal Heritage Act within the areas of the proposed tenements does not mean there may not be sites or areas of particular significance to the native title party over the area of the proposed licences. 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 Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act (to which the grantee party’s attention is drawn upon grant of the proposed licences) and the associated regulatory regime will protect areas or sites of particular significance from the likelihood of interference. This regulatory regime has been described on numerous occasions by the Tribunal and I adopt the findings in Maitland Parker at [32]-[41] including the findings referred to in those reasons from Walley (at [50]-[51]) in relation to the Government party’s regulatory regime; those of the Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) which found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely; and Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (‘Champion’) (at [68]-[72]) which found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites.
Recently the Federal Court in dismissing an appeal against the Tribunal’s determination in Maitland Parker made the following comments in relation to the Government party’s regulatory regime (Parker on behalf of the Martu Idja Banyima People v State of Western Australia [2007] FCA 1027 per Siopsis J ):
‘13At [35], the Tribunal rejected the contention that the existence of the statutory protective regime meant that “in all cases the protective regime will be adequate to make s 237(b) interference unlikely” and said:
Each case must be considered on its particular facts. What is clear is that the Tribunal is entitled to have regard and give considerable weight to the Government party’s site protection regime.
14At [47], the Tribunal observed:
As already explained, the possibility that a s 18 application may be made is not, since the amendment to the Act in 1998, decisive (as it was prior to 1998) in leading to a conclusion that there will be interference with sites of particular significance. This possibility has always been a part of the Government party’s regulatory regime which has been considered by the Tribunal and Federal Court in Little. Its importance in deciding whether there is a real risk of interference with sites of particular significance will depend under the predictive assessment approach on all the circumstances. If the evidence were to be that exploration could not be carried out without avoiding sites or that a s 18 application was virtually inevitable then these circumstances would need to be given greater weight. It would still, however, need to be considered in the context of the number of sites, the consultative mechanism in place with the native title party through a heritage survey or otherwise and the attitude of the grantee party to site protection.
18As to the first ground of appeal, it was submitted by the appellants that there was an erroneous conflation by the Tribunal of “interference for the purpose of s 237(b) of the Act with a breach of s 17 of the AHA”. In my view, there was no such conflation by the Tribunal. The Tribunal distinguished between the protection that might be afforded to an Aboriginal site by the statutory protective regime under the AHA and the application of the predictive assessment required under s 237(b) of the Act. It found that neither the existence of the statutory protective regime nor the expressed intention of a grantee party to give effect to that regime, was conclusive of the question under s 237(b) of the Act whether the grant of the exploration licence was not likely to interfere with the Barimunya site. The distinction between the protection afforded by the statutory regime, and the application of the predictive assessment required in respect of s 237(b) of the Act, is evidenced by the passages of the Tribunal’s reasons referred to at [13] and [14] above. This ground of appeal should be dismissed.’
In the present matter the Government party contends (as it does in all expedited procedure objection inquiries) that the Tribunal is bound by the decision of Nicholson J in Little v Western Australia [2001] FCA 1706 at [75]-[77] (discussed in Maitland Parker at [34]-[35]) to find that the protective effect of the Aboriginal Heritage Act makes the chance of any interference with sites of particular significance remote. The Federal Court’s appeal decision confirms that the Tribunal’s rejection of this contention has been correct if it is interpreted to mean that the Aboriginal Heritage Act and associated regulatory regime makes interference with sites of particular significance unlikely in all expedited procedure objection cases. The Federal Court has confirmed that the Tribunal should continue with its existing approach which involves a consideration of each case on its particular facts including the existence of the protective provisions of the Aboriginal Heritage Act as a relevant and important matter. The Tribunal will have regard to whether this protective regime and the presumption of regularity is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The evidence of Ms Connors in relation to sites is somewhat limited, confined only to asserting that ‘the area applied for by Flinders Diamonds contains a number of sites known to myself and my brothers, uncles and close kin … I am aware that the tenements contain, or are located in close proximity to, sites of extremely high cultural and historical significance to our people. There are at least two secret/sacred women’s Dreaming sites in the vicinity of Mount Jack and follow the Hamersley range’.
Tribunal mapping indicates that the proposed licences lie to the north and east of the Hamersley Range, with Mount Jack located approximately 10 kilometres south of the nearest of the proposed licences. There are 41 sites registered with DIA to the north and south of the proposed licences in an area of approximately 40 square kilometres surrounding them. Of these 10 are closed sites which normally suggests that they are of particular significance to the persons who are custodians of the sites and who provided information on them to the DIA. Although there is no evidence directly linking these registered sites to those referred to in Ms Cox’s statement I can infer that they are sites of particular significance to the native title party who are native title holders over an area which includes them. Three of these closed sites are located some four to six kilometres to the north and north west of the nearest of the proposed licence areas (P47/1291 and P47/1288) and seven are located over 10 kilometres to the south of the area of proposed P47/1289. Even accepting that they are sites of particular significance there is no reason to suggest that they will be interfered with by prospecting which occurs some distance from them particularly given the grantee party’s attitude to site protection and the fact that the location of these sites is now known to him. All of the other sites on the Register are open sites of various kinds mainly artefact/scatter sites which without more may not be regarded as of particular significance. Some are skeletal material/burial and mythological sites and there is a painting site to the west of Mount Jack. It is difficult to say with certainty whether the sites referred to by Ms Cox are the same as the sites on the Register although they probably are as they seem to be in the same vicinity as the closed sites on the Register to the south of the proposed licences which are about the same distance from the Mount Jack. Even accepting that the sites referred to by Ms Cox are of particular significance and that they are not on the Register I do not think they are likely to be interfered with given their distance some 10 kilometres from the proposed licence areas and the attitude of the grantee party to site protection. Whether on the Register or not the sites referred to by Ms Connors are now known to the grantee party.
Although there is no evidence of any sites of particular significance on or in the immediate vicinity of the proposed licence areas I am satisfied that even if there were the intentions of the grantee party with respect to site protection, the regulatory regime in place and the presumption of regularity mean that interference with them would be unlikely. Ms Connors asserts that the native title party has offered to enter into a heritage agreement with the grantee party that would provide for ‘appropriately qualified elders to visit the area, accompanied by their archaeologist and anthropologist, and with a company representative, to visit the leases in question, in order to demarcate and delineate the sites in question’. She expresses concern that the grantee party ‘has previously entered into an agreement for other leases in the area, and has indicated it now refuses to enter into the same agreement with respect to these leases’ and that damage to sites of significance may follow. Appended to the Government party’s statement of contentions is a copy of a Statutory Declaration from the grantee party, dated 5 September 2006, stating that it has executed a Regional Standard Heritage Agreement (‘RSHA’) for the Yamatji region ie the region covered by the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (the Native Title Representative Body) and has offered that agreement to Eastern Guruma People.
While I acknowledge that Yamatji do not represent the Eastern Guruma People, the grantee party’s action evinced an intention to enter into a RSHA but the evidence of negotiations about heritage protection indicates that the RSHA was not acceptable to the native title party and its Alternative Heritage Agreement (‘AHA’) was not acceptable to the grantee party. It appears that the major issue in contention related to financial payments to the native title party and their representative. The grantee party’s position is that the proposed licences were to supplement exploration licences E47/882, E47/1011 and E47/1036 which had already been granted and in relation to which the AHA proposed by the Eastern Guruma People had been entered into. The grantee party points out that the area of the proposed licences is relatively small compared to the area of the already granted exploration licences and involve small strips of land between the previously granted exploration licences. The Tribunal has confirmed by reference to maps supplied by the Department of Industry and Resources and lodged as part of the Government party’s evidence, that this is in fact the case. Despite not being able to reach satisfactory financial terms, the grantee party says (letter to Mr Frewen of 5 April 2007) that it ‘seeks to maintain a good relationship and goodwill with the Eastern Guruma People and will continue to observe the heritage protocols of the existing Alternative Heritage Agreement’ for the already granted tenements.
It is not for the Tribunal to comment on the reasons for the failure of the native title and grantee parties to reach an acceptable heritage protection agreement except in so far as it relates to the Tribunal’s task in considering s 237(b) of the Act and particularly the intentions of the grantee party with respect to site protection. What can be said is that the grantee party is aware of its responsibilities in relation to sites of particular significance evidenced by the previous AHA that it entered into and its willingness to negotiate about one in relation to the proposed licences. These negotiations broke down because of financial issues related to the nature and location of the proposed licences and not because of any failure of the grantee to be aware of its responsibilities under the Aboriginal Heritage Act. While I am not privy to the contents of the native title party’s AHA, I see no reason to suggest that Aboriginal heritage will not be adequately protected by the RSHA which is an agreement endorsed by the native title representative body, Government party and peak industry bodies (see discussion in Champion in relation to RSHAs generally in Western Australia at [15]-[24]).
I accept the grantee party is aware of its obligation to consult with the native title party about Aboriginal heritage if the tenements are granted and accept, by virtue of the Statutory Declaration, that it is prepared to enter into a heritage agreement with the native title party. Further, and as I found in Champion (at [33]), the Government party’s proposed condition (see above para [12]) ensures that, should the Eastern Guruma People decide to accept the RSHA after the proposed licences are granted, they have the opportunity to do so. I am satisfied that the Government party’s regulatory regime, its proposed condition and the grantee party’s acceptance of its responsibilities under the Aboriginal Heritage Act mean that there is no real risk that sites will be interfered with.
Major disturbance (s 237(c))
Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licences or the prospecting activities undertaken upon grant of the licences are likely to involve major disturbance to land or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal applies the law as enunciated by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 and more recently in Little & Others v Oriole Resources Pty Ltd[2005] FCAFC 243; (2005) 146 FCR 576 (5 December 2005) at [41]-[51]. The Tribunal must determine whether major disturbance is likely to occur (in the sense that that there is a real risk of it) from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
The native title party, by way of Ms Connors’ statement, says that ‘damage to sacred places on the land will take from, or sometimes destroy, the spirituality in the land’ but does not give specific information as to how a major disturbance is likely to occur as a result of the grant of the proposed licences. The Tribunal has previously considered and rejected the general contention that exploration or prospecting activities inevitably involve major disturbance to land in Champion (amongst other matters) and I adopt the relevant parts of my findings at [77]-[79] in this matter. There is no compelling evidence of any special features in this case which could lead to a finding that there is likely to be major disturbance to land. In particular, there are no Aboriginal communities in the vicinity of the proposed licence areas; there is a history of past and current mining exploration activity in and around the subject areas; the Government party regulates prospecting including by conditions requiring rehabilitation of the areas which in the absence of evidence to the contrary I can assume will be adhered; and there is no evidence to suggest that there will be any interference with Aboriginal sites.
Determination
The determination of the Tribunal is that the grant of prospecting licences P47/1288, P47/1289, P47/1290 and P47/1291 to Flinders Diamonds Ltd are acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
16 July 2007
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