Frank Sampi and Others on behalf of the Koongie-Elvire Native Title Claim Group v Oceania Mining Resources Pty Ltd and Another
[2019] NNTTA 55
•30 July 2019
NATIONAL NATIVE TITLE TRIBUNAL
Frank Sampi & Others on behalf of the Koongie-Elvire Native Title Claim Group v Oceania Mining Resources Pty Ltd and Another [2019] NNTTA 55 (30 July 2019)
Application No: | WO2018/0399 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Frank Sampi & Others on behalf of the Koongie-Elvire Native Title Claim Group (WC1999/040)
(native title party)
- and -
Oceania Mining Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Member Helen Shurven |
Place: | Perth |
Date: | 30 July 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) s 17 |
Cases: | Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another [2016] NNTTA 17 (Atkins v Drillabit) Barbara Sturt and Others on behalf of Jaru v Baibao Resources Pty Ltd and Another [2015] NNTTA 38 (Sturt v Baibao Resources) Ben Ward & Ors v State of Western Australia (1996) 69 FCR 208 (Ward v Western Australia) Carmel Elizabeth McDonald v Director-General of Social Security (1984) 1 FCR 354 (McDonald v Director-General of Social Security) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21; (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia) Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1; (2005) 190 FLR 362(Champion v Western Australia) Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42; (2001) 164 FLR 1 (Young v South Coast Metals) May Rosas/BHP Billiton Minerals Pty Ltd/Northern Territory [2002] NNTTA 113 (Rosas v Northern Territory) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives(s) of the native title party: | Mr Douglas D’Antoine, Kimberley Land Council |
| Representative(s) of the grantee party: | Mr Hong-Jim Saw, Oceania Mining Resources Pty Ltd |
| Representatives(s) of the Government party: | Ms Karess Dias, State Solicitor’s Office Mr Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
[1] I have been appointed to decide whether or not the expedited procedure applies to the proposed grant of exploration licence E80/5130 (the licence) to Oceania Mining Resources Pty Ltd (Oceania Mining). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including the expedited procedure statement in their notice of the licence, the State asserts the activities permitted under the grant are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to, in summary:
a.(a) interfere directly with community or social activities carried on by members of the native title claimants or native title holders (s 237(a));
b.(b) interfere with areas or sites of particular significance in accordance with the traditions of the native title claimants or holders (s 237(b));
c.(c) involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
d.[2] The licence covers approximately 29.26 square kilometres in the Shire of Halls Creek. The licence is wholly overlapped by the registered native title claim of Koongie-Elvire (WC1999/040). The extract from the Register of Native Title Claims indicates the registered native title rights and interests include rights to the possession, occupation, use and enjoyment as against the whole world of the area and, specifically, comprise:
e.(a) rights to possess, occupy, use and enjoy the area;
f.(b) the right to make decisions about the use and enjoyment of the area;
g.(c) the right of access to the area;
h.(d) the right to use and enjoy resources of the area;
i.(e) the right to receive a portion of any resources taken by others from the area;
j.(f) the right to control the use and enjoyment of others of resources of the area;
k.(g) the right to trade in resources of the area;
l.(h) the right to receive a portion of any resources taken by others from the area;
m.(i) the right to maintain and protect places of importance under traditional laws, customs and practices in the area; and
n.(j) the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.
o.[3] Frank Sampi and others on behalf of the Koongie-Elvire Native Title Claim Group (the Koongie-Elvire claimants) lodged an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion that the expedited procedure applies to the grant of the licence. If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, the grantee party and the State must negotiate in good faith with a view to reaching agreement with the Koongie-Elvire claimants about the grant of the licence.
p.[4] In determining whether the expedited procedure should apply or not, I must make a predictive assessment (see FMG v Yindjibarndi at [39]). I must look at what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference. I must have regard to the rights conferred by the grant of the licence, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia).
q.[5] For the reasons outlined below, my determination is that the expedited procedure does not apply to the licence.
Preliminary Matters
Koongie-Elvire’s materials
a.[6] The Koongie-Elvire claimants provided and rely on the affidavits of Mr Stuart Morton and Mr Ross Trevor James. Mr Morton identifies as a Koongie-Elvire claimant, the eldest person able to speak for the area, and that other people recognise him as the ‘main man for this area’ (at 3). In his affidavit, he outlines that, along with others he names, he should be consulted about anything happening in the licence area (at 3). Mr James identifies as a traditional owner for the area through an apical ancestor on the Koongie-Elvire claim and identifies the licence area as being that ancestor’s country (at 2). I accept the authority of Mr Morton and Mr James to speak for the claimants in relation to the area of the licence.
State’s materials
a.[7] The State submitted contentions in this matter, as well as: a brief exploration licence application work program statement from Oceania Mining; mapping; a Tengraph Quick Appraisal and a list of proposed endorsements and conditions intended to be imposed on the grant of the licence. The State also outlined that a condition will be placed on the licence where the native title claimants may request, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA) within certain timeframes.
b.[8] The State also provided results from the Department of Aboriginal Affairs’ Aboriginal Heritage Inquiry System (AHIS). This indicates there are four registered Aboriginal sites and two other heritage places in the licence area:
c.(a) Old Halls Creek – registered site ID 12618 (skeletal material/burial)
d.(b) Caroline Pool – registered site ID 12619 (skeletal material/burial)
e.(c) Halls Creek Tributary – registered site ID 13903 (artefacts/scatter, quarry)
f.(d) Widgingali – registered site ID 13905 (artefacts/scatter)
g.(e) Brockman 3 – other heritage place ID 13243 (artefacts/scatter, water source)
h.(f) Halls Creek – other heritage place ID 13904 (artefacts/scatter).
The geography of the area as outlined in the Koongie-Elvire materials
a.[9] Upon reviewing the materials relied on by the Koongie-Elvire claimants, I requested a map be created by the Tribunal’s geospatial services, in order to locate key sites and areas. In accordance with s 142 of the Act, the map was provided to parties for comment, and no issues were raised about the map or in relation to me having regard to it in my decision making.
b.[10] In its assessment of the Koongie-Elvire materials, the State asserts the evidence does not establish the sites mentioned are within the licence area (at 2). I do not agree with this assertion, and have found there are sites of particular significance within the licence. Generally, the relevant activities (for s 237(a)) or sites (for s 237(b)) will be located within the area covered by the proposed licence in order for them to be directly affected by the grant. For activities or sites outside the licence to be considered relevant, evidence must be provided demonstrating how the relevant activities under the grant would affect the assertions made of interference contemplated by s 237(a) or (b) (see Silver v Northern Territory at [35]).
c.[11] In considering the Koongie-Elvire evidence, it was not clear in two instances whether reference was being made to a geographical site or an AHIS site which had the same name. The first instance is a geographical site of Old Halls Creek located towards the centre of the licence and an AHIS recorded site 12618 named Old Halls Creek, which is a skeletal burial site, and located near the western boundary of the licence. These sites are approximately 3.5 kilometres from each other according to Tribunal mapping. Mr Morton refers to ‘Old Town’ throughout his affidavit, which upon enquiry by the Tribunal, was confirmed to be reference to the geographical location of Old Halls Creek (email of 3 July 2019).
d.[12] The other instance relates to the location of a site referred to as Caroline Pool. According to Tribunal mapping, the geographical location of Caroline Pool appears to be less than one kilometre outside the northern boundary of the licence area, and is within Reserve 3206 which itself partially falls within the licence area. There is also an AHIS registered site (ID 12619) named Caroline Pool located within the licence and not far from the geographical location of Caroline Pool.
e.[13] The State has assumed that Caroline Pool is the geographical site outside the licence, and do not comment on the AHIS site of the same name on the licence. The State makes no comment about Old Halls Creek or Old Town, other than to note they exist, and to note that Old Town is a particular reference point in the affidavits for burial sites (at 48). Oceania Mining did not provide contentions in this matter and, therefore, its position on these places is unknown.
f.[14] When considering these locations, I have adopted a common sense approach and outlined my reasoning and conclusions for each limb of s 237(a) and (b). This is exemplified in Ward v Western Australia (at 215-218), quoting McDonald v Director-General of Social Security (at 357), where the Federal Court relied on the approach that:
…where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go.
Procedural matters
a.[15] As mentioned, Oceania Mining provided no submissions in this inquiry.
b.[16] I concluded this inquiry could be determined on the papers, without the need for a hearing, and the parties had no issue with that approach.
c.[17] The Koongie-Elvire claimants have pursued their objection on the assertion that interference contemplated by ss 237(a) and 237(b) is likely. The Koongie-Elvire claimants have not made submissions in relation to s 237(c) of the Act. As such, I find there is no evidence to support a conclusion that the grant of the licence is not likely to involve, or create rights whose exercise will likely involve, major disturbance.
Section 237(a): Is the grant of the licence likely to interfere directly with the community or social activities of the Koongie-Elvire claimants on or related to the area of E80/513?
a.[18] To find that s 237(a) interference is likely, there must be direct and substantial interference with social or community activities (see Yindjibarndi v FMG). The Tribunal must balance a grantee party’s proposed exploration activities with any evidence of the Koongie-Elvire community and social activities, to determine whether the activities can coexist without direct or substantial interference (see Rosas v Northern Territory at [71]).
b.[19] The Koongie-Elvire claimants assert the evidence indicates they regularly participate in the following community and social activities:
c.(a) Swimming and fishing: at Caroline Pool, in the gorge in the licence, at Black Hill Yard and a dam south of the highway (which I have taken to be a reference to Duncan Road, which runs through the licence);
d.(b) Hunting: for goanna and kangaroo around Caroline Pool, and at Black Hill Yard;
e.(c) Camping: at Black Hill Yard and throughout the licence area;
f.(d) Corroborrees: taking place in and around the licence area;
g.(e) Teaching: on the licence area; and
h.(f) Collecting bush medicine and bush tucker: on the licence area.
[20] Mr James outlines that the licence area, and in particular Caroline Pool, are visited ‘often’ by the claimants (at 15). Likewise, Mr Morton states that claimants go to the area ‘nearly every day’ and that he goes ‘all the time’ (at 6). This is not surprising given the current town of Halls Creek is approximately 10 kilometres from the licence area. Both Mr Morton and Mr James live in Halls Creek.
j.[21] The evidence describes both Black Hill Yard and Caroline Pool as good spots for hunting, fishing and camping (for, example, Mr Morton at 8, 9, 11 and 16). I am satisfied these activities occur at or around Caroline Pool (both on and off the licence) and at Black Hill Yard (which is outside the licence) however, there is insufficient evidence to demonstrate how these activities would be interfered with as contemplated by s 237(a).
k.[22] I note the activities of swimming, fishing and camping are said to also occur at a ‘gorge in the tenement’, a ‘dam south of the highway’ and ‘throughout the licence area’ respectively. The information provided is broad. In relation to the activities of teaching, gathering resources, and corroborrees, limited information has been provided as to the location and intensity of these activities. For example, the materials do not demonstrate if the licence area, in particular, is required for these activities and if so, why. The materials also do not outline how exploration activity would directly and substantially interfere with social and community activities – for example, whether certain activities need to be conducted on certain places on the licence, and whether there are any specific consequences if social and community activities are not conducted at certain places on the licence.
l.[23] Very little further detail is provided about how exploration activity will interfere with community and social activities, apart from general assertions about not wanting exploration to destroy the area (Mr Morton at 16). The State argues that factors such as the frequency of the activities, the intensity of the activities in relation to the licence, and the duration of the activities, as I outlined in Sturt v Baibao Resources, have not been made out.
Conclusion
a.[24] While I have no doubt the activities occur on the licence because that is what has been deposed to, and that is uncontested, I am unable to be satisfied the evidence demonstrates these activities will be interfered with for the purposes of s 237(a).
b.[25] Without further information about the social and community activities, I am satisfied that exploration could occur on the licence, even assuming the full suite of rights under the grant are used by the explorer, without directly or substantially interfering with these social and community activities of the Koongie-Elvire claimants. For example, those activities do not appear to be tied to a particular place on the licence.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders on or related to the area of E80/513?
a.[26] In relation to section 237(b) of the Act, an area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34-35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory).
b.[27] I must consider, based on the facts of this inquiry, and the nature and extent of any sites of particular significance which are found to exist, whether the State’s protective regime is sufficient to make it unlikely there will be interference with sites of particular significance. This is a predictive assessment, and in making it, I can have regard to any ‘…evidence of the grantee party directed towards the protection of Aboriginal heritage’ (see Champion v Western Australia at [34], and also [30]-[33]). Oceania Mining did not provided any materials for my consideration in this inquiry.
What areas or sites of particular significance have been identified by the Koongie-Elvire claimants in relation to the licence?
a.[28] The Koongie-Elvire claimants assert the following areas and sites are of particular significance:
b.(a) Kangaroo Dreaming story;
c.(b) Rainbow Serpent Dreaming/Caroline Pool;
d.(c) burial sites;
e.(d) special objects left by old people and connected to law ceremonies; Wangga dreamtime corroborree; cave paintings; Police Hole gorge; Kangki rockhole; and women’s lawground.
f.[29] The State asserts in broad terms these areas and sites are not of particular significance, or not on the licence (at 2). Later in its contentions, the State ‘accepts that the burial sites and the rainbow serpent dreaming at Caroline Pool are significant, [and] there is insufficient evidence that the area of Caroline Pool is located within the area of the Proposed Tenement’ (at 46).
g.[30] In relation to the sites listed above at [28(d)], it is my view that insufficient detail has been provided to support the assertion that these sites are of particular significance in accordance with the claim group’s traditions. As such, I am unable to find these sites are of ‘particular significance’ to the claimants with respect to s 237(b).
Kangaroo Dreaming story
a.[31] Mr James outlines there is a kangaroo dreaming story ‘connected to that Tenement Area’ and China Wall (at 5). According to Tribunal mapping, China Wall is located outside of and approximately 2.7 kilometres east of the licence. The claimant materials provide limited information as to the specifics of the connection between the dreaming, the licence and China Wall, and limited information about why this dreaming story is of special or more than ordinary significance to the native title claimants in accordance with their traditions. Based on the materials before me, I have no doubt that story is of importance to the Koongie-Elvire claimants. However, I am unable to find that the story and the places associated with it are of ‘particular significance’ with respect to s 237(b).
Rainbow Serpent Dreaming/Caroline Pool
a.[32] There is a great deal of information in the affidavit evidence describing Caroline Pool, including its relationship to the rainbow serpent dreaming, and its importance as an area to the claimants, in accordance with Koongie-Elvire traditions. In particular, Mr Morton’s evidence outlines his personal experience with the dreaming (at 26) and its presence resulting in the area being ‘powerful’ and very important (at 27). It is said that Caroline Pool ‘never runs dry’ (Mr Morton’s affidavit at 11), and that there is a named presence which acts as a kind of protector of Caroline Pool (Mr James’ affidavit at 26-27). In outlining this evidence, I have been mindful of Mr Morton’s warning that the dreamings could hurt people if they do the ‘wrong thing with those stories’ (at 21).
b.[33] I accept the dreaming story is associated with Caroline Pool, and the ‘exact boundaries’ are difficult to describe (Mr James’ affidavit at 14). I also accept it is a place imbued with traditional values and meaning, being described as a meeting and corroborree place for the claimants and neighbouring groups (Mr Morton’s affidavit at 24). I also accept that the area continues to be used by the claimants in contemporary ways such as picnicking and playing sports.
c.[34] I conclude, based on the evidence supporting the assertion, the area surrounding and including ‘Caroline Pool’ is of particular significance to the Koongie-Elvire claimants. Further, I conclude that the area of ‘Caroline Pool’ is not isolated to the geographical site of Caroline Pool outside the licence or the AHIS site on the licence, but rather is a broader area encompassing both of these sites.
Burial sites
a.[35] The information provided in the affidavit evidence regarding burial sites is clear and compelling. The evidence speaks to there being ‘lots of burial sites on the Tenement area’, including at Caroline Pool and China Wall (Mr James’ affidavit at 6). This is consistent with Mr Morton’s evidence that there ‘are many places around the Tenement Area where there are old people buried’, and ‘especially around Old Town’ (at 30 and 32). Mr Morton identifies some of ‘the old people’ who are buried, saying these sites should not be disturbed because that would disturb the spirits of the old people (at 30-33).
b.[36] These statements on their own, would indicate that the licence has burial sites, which are important to the Koongie-Elvire claimants. However, the evidence is more powerful than a mere assertion, and I am satisfied the burial places are sites of particular significance because of the evidence linking the burial sites and practices to the Koongie-Elvire’s traditions. For example, Mr Morton recounts a personal experience from when he was a boy watching some of the old people being buried on the licence (at 31). His evidence also illustrates traditional laws and customs relating to the restriction of transmission of knowledge about burials within the community (at 31).
c.[37] The affidavits provide support for and information about practices to maintain and protect such places under traditional law and custom in the area, as well as maintaining, protecting and preventing the misuse of cultural knowledge of the claimants associated with the area (see [2(i)] and [2(j)] above).
d.[38] For example, some of these burial sites are linked to a feature on the land, which I do not repeat here due to cultural sensitivities (Mr Morton’s affidavit at 32). Numerous references are made to the ancestral spirits of the old people that are present at their burial sites and the cultural and spiritual significance of those areas, including links to the Caroline Pool area. Mr James speaks of the importance of protecting the burial sites of the claimants’ old people, because to not do so will result in serious spiritual sanction (at 7-8).
Is the grant of the licence likely to interfere with any of the identified areas or sites of particular significance to the Koongie-Elvire claimants?
a.[39] When evaluating the degree of interference for the purposes of s 237(b), I must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title claimants (see Silver v Northern Territory). I also consider materials and evidence provided by the State regarding the likely nature and extent of the exploration activities on the licence.
b.[40] In the absence of any materials from Oceania Mining, I have assumed it will undertake the full scope of activity to which it is entitled under the grant of an exploration licence (as per Silver v Northern Territory). These activities are set out in s 66 of the Mining Act:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
a.a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
b.b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
c.c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
d.d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
a.[41] The Mining Regulations 1981 outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
a.[42] In his evidence, Mr Morton speaks about a company leaving holes in the country and recounts the impact of such activities in other areas (at 38). This allegation does not appear to be targeted at Oceania Mining, nor is any detail provided about the exploration activities which caused that interference, or specifically whether it was on this licence, or when. As such, I have not had regard to that information as part of my consideration of interference.
b.[43] The Koongie-Elvire contentions and evidence outlines concerns about mining or exploration activities occurring in the area of the licence. For example, Mr Morton outlines a concern that drilling occurring at Caroline Pool could result in the water being contaminated (at 29). Mr James says that people shouldn’t touch things around Caroline Pool and that nothing should be taken (at 11). If these rules are not followed, Mr James outlines that the ‘spirits will come after you and make you mad’ (at 11).
c.[44] The State has outlined a number of endorsements and conditions which will be placed on the licence, including condition eight:
The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water Reserve 21787, Common Reserve & Recreation Reserve 3206, Halls Creek (Old) Townsite and the area outlined in red on Tengraph and designated FNA 9265 (Proposed amalgamation of portion of Elvire Station into Lot 76 Halls Creek).
a.[45] As previously noted, the specific site of Caroline Pool is located within Reserve 3206. The State has not provided any submissions as to how the above condition may impact my assessment of whether the grant will interfere with the Caroline Pool area. In the absence of this, I do not find this condition reduces the risk of interference with that area, particularly given I find the Caroline Pool area is larger than the geographical site on the reserve.
b.[46] In relation to the burial sites, Mr Morton outlines that if these were dug up, that would disturb the spirits of the old people and, for this reason, they must not be disturbed (at 33-34). Similarly, Mr James outlines that if the burial sites are interfered with, then something ‘bad’ will happen (at 7). Mr James explains that if the spirit from that place doesn’t kill you, it might hurt your family (at 7). The State’s materials indicate there is a Cemetery Reserve which slightly overlaps the licence (R40681) and I note condition number seven proposed by the State:
No exploration activities on Cemetery Reserve 40681 and such activities within a distance of 140 metres laterally from the Reserve being confined to below a depth of 50 metres from the lowest part of the surface of the land with rights of ingress to and egress from the said Reserve being at all times preserved to the public.
a.[47] Mr Morton’s evidence is that the old people (especially those who lived at Old Town) were not buried in the cemetery, and that they ‘didn’t have proper gravesites in the graveyard’ and were ‘not buried very deep’ in the ground (at 33). Given this, I am not satisfied that the above condition will adequately address the risk of interference to the burial sites in the licence.
b.[48] As well as the endorsements and conditions which the State outlines will be placed on the licence, it will also apply an RSHA condition as part of its regulatory regime. In response, the Koongie-Elvire reply notes that RSHAs are not used in the Kimberley region and are not endorsed by the claimants as they do not address their ‘specific cultural and heritage concerns’ (at 10). The matter of Atkins v Drillabit Pty Ltd is mentioned in the reply (at 10d) in support of the assertion that ‘low impact’ activities would interfere with the sites of particular significance in accordance with the Koongie-Elvire’s traditions. Based upon the Koongie-Elvire traditions as outlined in the evidence, I am satisfied that even ‘low impact’ activities would constitute interference and, therefore, do not find that mechanisms such as an RSHA condition will significantly reduce the risk of interference.
c.[49] The State argues that if the AHIS sites marked as skeletal/burial sites are the same as the burial sites outlined in the claimants’ evidence, then the Aboriginal Heritage Act 1972 (WA) (AHA) will afford them protection (at 49). I do not agree with this assertion. As was succinctly put by the Tribunal in Young v South Coast Metals ‘the concepts outlined in section 17 of the Aboriginal Heritage Act 1972 do not “cover the field” of interference as understood by section 237(b)’ (at [57]).
d.[50] That decision also drew the distinction between the operation of the AHA and the concept of interference under s 237(b) (see for example at [48], [53] and [55]). In my view, Oceania Mining does not have to breach the AHA to interfere with a site of particular significance. For example, I consider that merely driving vehicles over a burial site would be interference for the purposes of s 237(b), but not for the AHA. This also applies to the operation of an RSHA, where survey work by a native title claimant is not triggered unless certain types of activities are undertaken by an explorer (for example, ground disturbing activities).
e.[51] In addition, I am not satisfied the two AHIS sites described as skeletal/burial sites on the licence are the totality of burial sites in the licence. This is supported by the evidence, and the pattern of long term use of the area on and proximate to the licence.
f.[52] The evidence also supports me taking the same view in relation to the area of Caroline Pool, and as such I find that area also likely to be subject to interference by exploration activities.
g.[53] It is apparent that taking 1000 tonnes of soil from an area where there are burials which are not covered by the AHA, or the broader area of Caroline Pool, is likely to substantially interfere with these sites. Given the sensitivities outlined, and the traditional law and custom associated with these areas, I also rely on the Federal Court’s decision in FMG v Yindjibarndi, where it was held that ‘mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference’ (at [76]).
Conclusion
a.[54] I am satisfied there are sites of particular significance on this licence, and that they are likely to experience interference which offends s 237(b) from exploration activities allowed by the grant of the licence.
Determination
a.[55] My determination is that the grant of E80/5130 to Oceania Mining Resources Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
30 July 2019
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