Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC v Proton Geoscience Pty Ltd
[2018] NNTTA 34
•14 June 2018
NATIONAL NATIVE TITLE TRIBUNAL
Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC v Proton Geoscience Pty Ltd and Another [2018] NNTTA 34 (14 June 2018).
Application No: | QO2017/0054 |
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
Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC (QC2015/003)
(native title party)
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Proton Geoscience Pty Ltd
(grantee party)
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State of Queensland
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara |
Place: | Brisbane |
Date: | 14 June 2018 |
Catchwords: | Native title – future act – proposed grant of exploration permit – 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 cause major disturbance to land or waters – expedited procedure attracted |
Legislation: | Native Title Act 1993 (Cth) Mineral Resources Act 1989 (Qld) Aboriginal Cultural Heritage Act 2003 (Qld) Environmental Protection Act 1994 (Qld) |
Cases: | Aplin on behalf of the Waanyi Peoples v State of Queensland (No 3) [2010] FCA 1515 (‘Aplin v Queensland’) Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’) Dann v Western Australia (1997) 74 FCR 391; [1997] FCA 332 (‘Dann v Western Australia’) Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money, [2011] NNTTA 91 (‘Murray v Money’) Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (‘Ross v Gamboola’) Ngan Aak-Kunch Aboriginal Corporation RNTBC v Glencore Bauxite Resources Pty Ltd [2016] NNTTA 22 (‘Ngan Aak-Kunch v Glencore’) Rosas v Northern Territory (2002) 169 FLR 330; [2002] NNTTA 113 (‘Rosas v Northern Territory’) Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’) Taylor on behalf of the Gangalidda and Garawa Peoples #2 v State of Queensland [2015] FCA 730 (‘Taylor v Queensland’) Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘WDLAC v Teck Australia’) WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Pty Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’) |
| Representatives of the native title party: | Ms Marnie Parkinson, |
| Representative of the grantee party: | Mr Chris Athanasiou, Counsel Mr Brian Martin, Hetheringtons Exploration Management Services |
| Representatives of the Government party: | Ms Sophie Hoffmann, Crown Law |
REASONS FOR DETERMINATION
This decision considers whether the expedited procedure applies to the proposed grant of exploration permit EPM 26517 (‘the proposed permit’) to Proton Geoscience Pty Ltd (‘Proton Geoscience’). In May 2017, the State of Queensland (‘the State’) notified its intention to grant the proposed permit under the Mineral Resources Act 1989 (Qld). In notifying its intention to grant the proposed permit, the State included a statement that it considers the grant to be an act attracting the expedited procedure. By including an expedited procedure statement in the notice of intention to grant, the State has asserted the activities allowed under that permit 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:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The proposed permit comprises an area of approximately 266 square kilometres and is located 40 kilometres south of Doomadgee in the Burke Shire Council area. The proposed permit consists of two discrete portions of a similar size: a western portion and an eastern portion. The northern edge of the proposed permit’s eastern portion encroaches over the area for which the Gangalidda and Garawa People are the determined native title holders (see Taylor v Queensland). This overlap comprises approximately 8.69% of the proposed permit’s total area. The native title rights and interests of the Gangalidda and Garawa People are held on trust by the Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC. The entire western portion and the western edge of the eastern portion overlaps (at approximately 70.48%) the boundaries of the Waanyi People’s determination of native title (see Aplin v Queensland).
Following notification of the grant of the proposed permit, the Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC (‘the native title party’), lodged an application with the Tribunal objecting to the assertion that the expedited procedure applies to the grant. The native title party argues the expedited procedure should not apply as interference or disturbance with each of the s 237 criteria is likely. Proton Geoscience and the State both argue the expedited procedure should apply.
The then President of the Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies. In making this determination, I must have regard to the s 237 criteria and determine the following issues:
(a)Is the proposed permit likely to interfere directly with the carrying on of the native title holders’ community or social activities?
(b)Is the proposed permit likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions?
(c)Is the proposed permit likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
If the answer to any of these questions is ‘yes’, then Proton Geoscience and the State must negotiate in good faith with any registered native title claimants or registered native title bodies corporate with a view to reaching agreement about the grant. If I am satisfied there is no real risk or chance that the proposed permit will have those effects, then the grant can validly proceed without the requirement for negotiations. The Tribunal’s task is to form a view on these matters by undertaking a predictive assessment of what is likely to occur as a result of the grant, taking into account the rights conferred, what is proposed to be done and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]).
The conduct of the inquiry
Following a period of negotiations between the parties, I issued directions for the inquiry. These directions required each party to provide a statement of contentions and documentary evidence relating to the matters for determination.
The native title party provided a statement of contentions, supported by a number of documents including the affidavits of Clarence Walden (sworn in 2011), Catherine O’Keefe, Betty O’Loughlin and Gordon Doomadgee (all sworn in 2014). The native title party explains that each of the deponents are Gangalidda People, being the people who hold native title over, and are responsible for, the land that covers the northern edge of the proposed permit’s eastern portion (see Schedule 4 of Taylor v Queensland). It appears these affidavits were filed with the Federal Court in support of the Gangalidda and Garawa Peoples #2 claim (QUD66/2005). As such the affidavits do not address the area of the proposed permit specifically, nor do they address the criteria under s 237 directly.
Also included in the native title party’s material is a document dated 8 March 2012 and titled Aboriginal Cultural Heritage Survey – Bluebush Project (Final Report) (‘Bluebush Report’). The native title party’s contentions state the Bluebush Report refers to a cultural heritage survey that covered much of the land and waters within the eastern portion of the proposed permit. The native title party states the field team assembled for the survey comprised Gangalidda People and I note included the deponents Mr Walden and Mr Doomadgee.
Proton Geoscience lodged a statement of contentions that was accompanied by supporting documents, including an approved work program and an Environmental Authority issued by the Queensland Department of Environment and Heritage Protection. The State lodged a statement of contentions and a number of documents, including Proton Geoscience’s permit application, a cultural heritage database search, and documents describing the current and historical underlying tenure of the proposed permit area.
The native title party’s contentions in reply were supported by the affidavits of Marnie Parkinson, solicitor for the native title party, and Murrandoo Bulanyi Yanner, a Gangalidda native title holder and Chairperson of the Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC.
Directions for the inquiry instructed parties to lodge an agreed statement of issues and facts, identifying any material facts not agreed. Parties identify the issues in dispute to be whether the grant of the proposed permit will cause interference or disturbance of the kind described at s 237 of the Act. In addition to this primary issue, the parties agree that there is a secondary issue, being to what extent the Native Title Protection Conditions[1] (‘NTPCs’) and the Environmental Authority will apply to render unlikely interference or disturbance of the kind described at s 237.
[1] Native Title Protection Conditions Version 4, June 2017, which replaced the NTPCs Version 3, June 2014 referred to in the s 29 notice, >
Parties also agreed on the below list of facts in dispute:
·whether the Gangalidda Determination Area contains ‘sites of particular significance’ for the purpose of s 237(b) of the Act;
·to what extent the area covered by the proposed permit has been subject to exploration and mining activities;
·whether any of the activities described in the native title party’s contentions (specifically para 45) are community and social activities of the persons who are the holders of native title in relation to the land and waters concerned;
·whether the approved work program identifies all the activities that Proton Geoscience is, or is likely to be, authorised to perform under the proposed permit;
·whether (because of the application of the NTPCs or otherwise) there is any real chance or risk of the activities that Proton Geoscience is authorised to perform under the proposed permit impacting on any community and social activities of the persons who are the holders of native title in relation to the land and waters concerned;
·whether it is likely that Proton Geoscience, its employees, contractors and/or agents will exercise their rights under the proposed permit in a manner sensitive to all Aboriginal cultural heritage matters; and
·whether (because of the application of the NTPCs or otherwise) it is likely that the native title party will be able to establish an exclusion zone or prevent Proton Geoscience carrying out activities pursuant to the proposed permit on any area which is of particular significance to the persons who are the holders of the native title in relation to that area, including land and waters which are:
(a)The subject only of Agreed Exploration Activities as defined in the NTPCs; or
(b)Not recorded as a Significant Aboriginal area on the Aboriginal Cultural Heritage Register under s 48 of the Aboriginal Cultural Heritage Act 2003 (Qld).
Throughout the course of this determination, I will address each of the issues identified above as well as any further issues I have identified in the material before me.
I sought comment from parties as to the need for a hearing and it was agreed that the matter could proceed ‘on the papers’. Having considered the documents before me, I am satisfied that the matter can be adequately determined on the papers in accordance with s 151(2).
Native Title Protection Conditions and Environmental Authority
As noted above, parties have put forward as an issue in dispute to what extent the NTPCs and the Environmental Authority (‘EA’) will apply to render unlikely interference or disturbance of the kind described at s 237. While I will consider this issue more specifically later in this decision under the relevant arms of s 237, I believe it is worth discussing at this point some broad contentions made by parties about the operation and effect of the regulatory regime in Queensland.
The key legislative protection mechanism of Aboriginal cultural heritage in Queensland is the cultural heritage duty of care outlined in the Aboriginal Cultural Heritage Act 2003 (Qld) (‘ACHA’). The ACHA defines this duty of care at s 23, stating ‘[a] person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage.’ Section 23(3) outlines the various ways in which compliance with the duty of care can be deemed met. This includes if the person is acting in compliance with the cultural heritage duty of care guidelines, or if the person acting is in compliance with native title protection conditions, but only if the cultural heritage is expressly or impliedly the subject of the conditions.
The notice issued by the State outlining its intention to grant the proposed permit states that it will be subject to the NTPCs. In Ross v Gamboola I considered the operation of the NTPCs and how much weight they should be afforded in the context of an expedited procedure inquiry. At [83] I broadly describe the NTPCs as:
…a standard set of conditions that address cultural heritage management and provide processes for inspections, notice requirements and administrative payments. It is a condition of the NTPCs that exploration activities must not be carried out in an area if they are likely to interfere directly with community or social activities or sites of particular significance, or are likely to involve major disturbance to the land or waters concerned, except in accordance with the NTPCs. This is illustrative of the purpose of the NTPCs, which are designed to address and limit the risk of interference or disturbance of the kind mentioned in s 237.
In addition to the legislative protective mechanisms contained within the ACHA, the Environmental Protection Act 1994 (Qld) (‘EPA’) provides for the environmental regulation of mining in Queensland. Under the EPA, Proton Geoscience is required to hold an EA in relation to the activities it proposes to undertake over the proposed permit. The EA sets out various legislative requirements and conditions with which Proton Geoscience is required to comply. Failure to comply could result in Proton Geoscience facing enforcement actions under the EPA.
Proton Geoscience’s contentions state it will comply with the NTPCs and the EA, including any rehabilitation required. The Government party contends the regulatory regime, including the mechanisms described above, will constrain the activities Proton Geoscience is able to conduct, and it is in this context that the Tribunal’s predictive assessment must occur.
The native title party takes issue with the effectiveness of these regimes in limiting the risk of interference or disturbance of the kind described in s 237. The native title party contends it has no legal capacity to enforce Proton Geoscience’s compliance with any of the terms of the NTPCs, including those that directly affect the native title party and govern its capacity to respond to potential interference. The native title party argues, due to Gangalidda people predominantly residing in remote Queensland, the terms of the NTPCs, particularly the timeframes, are unsuited to preventing deliberate or inadvertent interference of the kind described at s 237.
The native title party also contends, even if the NTPCs are complied with, Proton Geoscience’s activities may still result in interference or disturbance of the kind described at s 237. In support of this contention the native title party provides the following examples:
·under the NTPCs, Proton Geoscience will not be required to conduct a field inspection or provide for monitoring if the activity is classified as an Agreed Exploration Activity[2];
·Proton Geoscience may elect to hold the consultation meeting required under the NTPCs in its preferred location, which could make it financially and logistically difficult or impossible for the native title party to attend. If this were the case, the native title party would be effectively prevented from raising concerns at that meeting; and
·even if the native title party are able to raise concerns, there is no requirement under the NTPCs that Proton Geoscience act on those concerns.
[2] The classification of ‘Agreed Exploration Activities’ covers activities that are typically considered non-ground disturbing, such as non-clearing field work and ground-based surveying, and aerial surveys, as well as drilling and associated activities over land that has already been cleared (see NTPCs Schedule 1).
The native title party contends that it has no legal capacity to enforce compliance with the NTPCs, however, this is not to say there is no process for enforcement. In Ross v Gamboola, the native title party raised a number of specific instances of alleged non-compliance to support its contention that the NTPCs are ineffective. In response, the State provided details of its processes for dealing with potential non-compliance and also provided details of the specific actions that were taken following reports of non-compliance provided by the native title party (see Ross v Gamboola at [87]-[93]). Overall I was not satisfied the evidence supported a conclusion that the State’s role in ensuring compliance with the NTPCs was ineffective. I concluded (at [94]), rather than demonstrate the failure of the NTPCs as a regulatory mechanism, the example discussed by parties demonstrated the process the State has in place for responding to complaints of non-compliance with the NTPCs. I also noted (at [97]), the example demonstrated that ‘unlike a contractual agreement, there are avenues for the native title party to seek enforcement by the State, rather than through a formal legal process.’
It is not unreasonable for the native title party to have concerns regarding Proton Geoscience’s ability to undertake certain activities without a field inspection or monitoring and those concerns can be afforded some weight in my considerations. The Tribunal has observed on numerous occasions that, no matter how robust the regulatory regime, it may not be sufficient to prevent all contraventions. However, that does not mean the Tribunal should not give any weight to that regime, as ‘the effectiveness of a regulatory regime does not necessarily require universal compliance by enforcement of the measures on which it relies’ (Ross v Gamboola at [95]). Importantly, the risk of interference will depend on the particular circumstances and the Tribunal must deal with each matter on its facts.
The native title party has not made specific contentions in relation to the EA other than to take issue with the Government party’s reliance on the relevant standard environmental conditions contained in the EA. The native title party has provided a list that identifies sections of the EA that permit certain activities as well as sections of the EA that acknowledge certain impacts may occur. The inference presumably to be drawn is that it shows impacts that may occur under the proposed permit, and, by virtue of allowing these sorts of impacts to occur, the EA is an ineffective tool in reducing the risk of interference or disturbance.
I am not satisfied the native title party’s list of permissible activities, of itself, affects the weight to be given to the EA in terms of limiting the risk of interference or disturbance under s 237. Although mineral exploration is often termed ‘low impact’, it is not necessarily ‘low impact’ in the section 24LA sense. It must be expected that some level of impact is likely to occur as a result of the activities. Oftentimes the Tribunal is satisfied that the exploration activities likely to be undertaken, together with the relevant regulatory regime, mean interference or disturbance of the kind described in s 237 is not likely. However, this will not be the case in all circumstances. Therefore, I must make my assessment based on the particular facts of each matter.
Interference with community or social activities: s 237(a)
The Tribunal’s task under s 237(a) is to determine whether the grant of the proposed licence is likely to interfere directly with the carrying on of the native title party’s community and social activities. The interference must be substantial and not trivial in its effect on the activities (see Smith v Western Australia at [26]).
What community and social activities do the Gangalidda People carry on?
The affidavits of Mr Doomadgee, Ms O’Loughlin, Ms O’Keefe and Mr Walden all describe fishing, hunting and camping activities in Gangalidda country. As noted above, these affidavits were not prepared for this matter specifically. As such, a number of the locations described in the affidavits as places used for these activities are not located within the proposed permit area but rather in the broader area described as Gangalidda country.
All four deponents refer to Punjaub Station, and specifically along the Gregory River, as a place used regularly for fishing. Punjaub Station covers a large section of the eastern portion of the proposed permit and extends further north and east. Mr Doomadgee states (at 12) ‘I went fishing on Punjaub with my dad. It was along the Gregory River, near the homestead’; (at 14) ‘[t]he old road through Punjaub went close to the Gregory River. Gangalidda people would use that road and camp. Maybe do some fishing. Gangalidda people have been through that country a lot’; (at 17) ‘I still go fishing and catching turtle on Punjaub, mostly on the Gregory near the homestead.’ Mr Walden attests (at 5) to taking up to two or three carload of family members hunting and fishing ‘most weekends’ to areas including Punjaub. Ms O’Keefe states (at 7):
These days I go fishing with my daughter Rowena and grandchildren over at 12 Mile Waterhole on Punjaub Station. The bush name for that is Garrand Gulla. It’s on the Gregory River south of the Punjaub homestead. We drop in at the homestead and let them know what we’re doing. We get catfish, bream, barra, swordfish, short and long neck turtle at 12 Mile.
The affidavit of Ms O’Loughlin states (at 35):
I’ve been fishing on Punjaub station. …We went to the junction of Elizabeth Creek and the Gregory River. Net fishing. We call that place garran.gula. There’s a story about that place. Its dangerous. Women can’t talk about it. Men can talk about it. We caught turtle, bream, catfish.
There is also reference in the affidavit material to the need for consultation with Gangalidda people before using the land. For instance, Ms O’Keefe (at 15) states ‘Gangalidda country means I can live off the land. I can hunt, fish and gather on the country. I can teach my family about my country. It also means that if people who aren’t Gangalidda want use [sic] our land, then they need to ask. Sit down and sort it out.’
The native title party’s contentions refer to mythical creatures that inhabit the area who are hostile and influence the availability of bush resources. This is an issue raised by one of the survey participants in the Bluebush Report. It is also mentioned in the affidavit of Ms O’Loughlin, who states (at 41) ‘[i]f someone who isn’t Gangalidda wants to use our country, they have to ask the right person. Sit down and talk. If they don’t ask, they will get nothing. Those Gurdidawa would make sure of that. Gangalidda people might ask them to leave.’ The affidavit of Ms O’Keefe states (at 13) ‘[i]f you break the rules, the little people will come. The [sic] cause problems for you, like you car could break down. We call them gurdidawa.’
The native title party’s contentions state Proton Geoscience’s activities are likely to interfere with the relations between Gangalidda and Waanyi people residing in Doomadgee because the proposed permit covers both determination areas. This issue is not discussed in the affidavits provided, however, the Bluebush Report makes reference to the relationship between Gangalidda and Waanyi people. At the time of the survey, those Gangalidda people involved in the survey expressed concern about the ‘impact that exploration activities may have upon existing tensions between Gangalidda and Waanyi people over the location of the Native Title claim border’ (Bluebush Report at p 8). I note that both native title claims have been determined since the Bluebush Report was produced and the two groups no longer have a shared border. The report goes on to state the conduct of survey activities reflects on the broader group of the Gangalidda people and their relationships with the broader group of the Waanyi people. One survey participant was quoted as saying “it [i.e. the potential impact of exploration activities][is] not just on our side, we gotta be careful of that’ (Bluebush Report at p 9).
Are the activities community or social activities?
The State accepts that the native title party has provided some evidence of activities associated with fishing and hunting on the area. I am satisfied that Gangalidda People hunt, camp and fish in and around the eastern portion of the proposed permit. However, due to the general nature of the affidavits, it is difficult to know how much these activities occur within the proposed permit area as opposed to the larger area of Punjaub Station.
The State contends that, of the matters listed in the native title party’s contentions, the majority do not appear to be ‘community or social activities’. The State refers to a distinction I drew in Ngan Aak-Kunch v Glencore between ‘managing country’ and ‘community or social activities’ of the kind that can be considered under s 237(a).
In Ngan Aak-Kunch v Glencore, the native title party’s primary contention in relation to s 237(a) was that the grant of the proposed mineral development licence would interfere its right to make decisions about the use of the area. In that matter, I observed the way the right had been described bore some similarity to the responsibility for ‘managing country’ that had been considered in other Tribunal decisions, such as Yindjibarndi Aboriginal Corporation v FMG Pilbara. As exclusive native title holders, the native title party were entitled to exercise certain rights and interests in relation to decision-making as a matter of law. However, there was no specific evidence as to how decision-making took place in the licence area. As such, the evidence did not support a finding that they carried on any community or social activities.
In this matter, the native title party’s affidavit evidence makes brief reference to the need for people to seek permission from Gangalidda before using the land. The circumstances of this matter differ from both Ngan Aak-Kunch v Glencore and Yindjibarndi Aboriginal Corporation v FMG Pilbara in that the native title party does not hold exclusive native title over the proposed permit. As such, as a matter of law, the native title party does not have the right to control access to the land. As a matter of practice, the native title party has not provided enough detailed evidence to show how this activity takes place. As explained in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), the focus of s 237(a) must be on physical activities (even if they are carried out because of a spiritual relationship to the land). As such, in this matter I am not satisfied the native title party’s custom of people seeking its permission before using the land is a social or community activity for the purposes of s 237(a).
Similarly, I am not satisfied the evidence supports a finding that the relationship between Waanyi and Gangalidda people is a community and social activity for the purposes of s 237(a). While there is a suggestion of tensions, and that survey and exploration activity has an effect on the relationship, this is not explained in any detail and the evidence is not particularly current.
Are there any other interests that have already interfered with these activities?
The State argues the proposed permit area has been subject to extensive historical exploration, mining and pastoral activity which reduces any chance of impact by Proton Geoscience’s activities. In support of this contention, the State has provided details of historical and current tenure overlapping the portion of the proposed permit that sits within the Gangalidda and Garawa determination area. This information shows there have been three previous Exploration Permits for Minerals, granted between 1991 and 1995. It also shows there is one current (granted 2012) and six previous Authority to Prospect permits (granted between 1954 and 1989) that overlapped the area. It appears the underlying area of the proposed permit is almost entirely pastoral lease. The State contends, for these reasons, there is no real chance the activities authorised under the proposed permit will impact the native title party’s social and community activities.
The native title party acknowledges that the whole of the proposed permit has been overlapped, to varying degrees, by previous and current tenements but takes issue with the notion that this eliminates any risk of interference posed by the proposed permit. It contends the extent of any activities carried out pursuant to those tenements, or the extent of any disturbances caused by such activities cannot be known in the absence of evidence.
In WDLAC v Teck Australia I noted (at [123]) ‘it does not necessarily follow from the grant of mineral tenure that exploration or mining activity has actually taken place.’ I am satisfied previous mining tenure has existed over the proposed permit area but I am not prepared to make a finding on the extent of prior exploration activity in the absence of evidence to support such a finding.
What activities are Proton Geoscience likely to undertake on the permit area?
Proton Geoscience’s intended activities over the permit area are briefly outlined in its approved work program, which covers a five-year period. In the first year, the program contemplates desktop geological and geophysical review. In the second year, the program involves 10 lines of ground magnetotellurics and site logistics. The third, fourth and fifth years involve diamond drilling of 10, 20 and 18 holes per year respectively, with associated sample assaying.
The native title party has challenged the relevance of the approved work program. It notes the proposed permit, if granted, will be for an initial term of up to five years with the option to renew the permit for up to a further five years. The native title party contends it is impossible to determine the full extent of the permissible exploration activities during the term of the proposed permit (as renewed or extended) with any precision, therefore the Tribunal should assume Proton Geoscience will exercise the rights granted to the fullest extent permissible.
A similar contention was made by the native title party in Ross v Gamboola, although I note in that matter the approved work program only contemplated the first two years of exploration and did not include drilling (despite the grantee party proposing this activity during negotiations with the native title party). In that matter I noted (at [34]):
In determining whether the expedited procedure applies to the proposed permit, the Tribunal must undertake a predictive assessment of what is likely be done, rather than what could be done, as a result of the grant (see Smith v Western Australia at [23]; Little v Oriole Resources at [49]–[52], [57]). Evidence as to how a grantee party intends to exercise the rights conferred may be relevant to that assessment although, as the Tribunal observed in Walley v Western Australia at [9], the relevance and weight of that evidence will depend on the circumstances of the particular case.
In this matter, I am satisfied the work program is indicative of the activities Proton Geoscience is likely to undertake during the initial term of the proposed permit. I am conscious these activities may extend into a further five year period if the permit is renewed. The native title party has noted that nothing in the material identifies the locations or potential locations, of Proton Geoscience’s activities within the proposed permit.
Proton Geoscience states it will not exclude any community activities on the proposed permit unless it is considered temporarily unsafe for their conduct. It states, should that circumstance arise, it will ‘consult with the community to relieve apprehensions.’ Proton Geoscience also contends that, at a minimum, it will undertake the consultations required under the NTPCs.
The native title party has raised Proton Geoscience’s behaviour during negotiations, arguing these actions appear to have been disingenuous and not conducive to a negotiated outcome or a responsive relationship between the parties. I can infer this forms part of the broader argument raised by parties regarding the likelihood of Proton Geoscience exercising its rights in a manner sensitive to all Aboriginal cultural heritage matters.
Relying on the affidavits of Ms Parkinson and Mr Yanner, the native title party argues during negotiations Proton Geoscience had: not been prepared to meet or consult with the native title party; not been prepared to provide the native title party with details of its proposed exploration activities; been inflexible in its response to the draft agreement provided by the native title party; changed positions by making additional demands regarding the terms of the draft agreement.
To be clear, acts notified under the expedited procedure do not afford the native title party a right to negotiate. Therefore, all negotiations conducted between parties are entered into voluntarily and are not subject to the good faith requirements that apply to negotiations under s 31 of the Act. For this reason, the question of whether Proton Geoscience’s behaviour demonstrated disingenuity or was not conducive to a negotiated outcome is not relevant to this determination.
The Tribunal is entitled, in the absence of evidence to the contrary, to rely on a presumption of regularity and assume that a grantee party will act lawfully in exercising the rights to be granted (see Murray v Money). I see nothing in the material before me that persuades me to set aside this presumption. Whether Proton Geoscience exercises its rights in a manner that is ‘sensitive’ to Aboriginal cultural heritage arguably goes beyond merely acting lawfully. The native title party have not articulated how this directly relates to my findings on this criteria. However, to the extent that this point may be relevant, I do not believe the behaviour shown by Proton Geoscience during negotiations demonstrates a lack of sensitivity in this regard or a lack of intent to conclude an agreement.
Are Proton Geoscience’s activities likely to interfere with the native title party’s community or social activities?
I accept that Gangalidda people undertake fishing activities in the eastern portion of the proposed permit and it seems likely that some hunting and camping is also undertaken in this area. The evidence suggests that these activities are also undertaken regularly in the areas surrounding the proposed permit. In relation to these activities, the native title party contends the proposed exploration activities would interfere with:
·the rivers, creeks and waterways as well as the fish, turtles and other bush foods they contain;
·the native title party’s fishing and hunting, including by scaring away animals through drilling and using bulldozers;
·the native title party’s activities associated with fishing and hunting, including access and camping; and
·plants used by the native title party for bush tucker and medicine.
The native title party contends the NTPCs will not obviate the risk of interference caused by Proton Geoscience’s activities or presence and that Proton Geoscience has not shown it has the intent, experience or capability to deal with Aboriginal cultural heritage, native title holders generally, or the native title party specifically.
In order for me to find interference of the kind contemplated under s 237(a) is likely, it must be direct and substantial (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). In my view, the exploration proposed by Proton Geoscience is unlikely to interfere substantially with the native title party’s fishing and hunting activities. The native title party’s affidavit evidence describes the Gregory River broadly as a frequent location for fishing, and I note this river extends to both the north and south of the proposed permit. The affidavits also refer to a number of fishing locations that are not within the proposed permit, but are in the near vicinity, for example Elizabeth Creek and the Nicholson River. This would suggest that if the native title party was temporarily prevented from accessing fishing and hunting locations in the proposed permit area due to exploration activities, there are other locations in the near vicinity that could be accessed.
I have also had regard to the fact that the NTPCs will require Proton Geoscience to notify the native title party about proposed exploration activity, which will further reduce any risk of interference. I acknowledge the native title party’s contention that there will be certain activities Proton Geoscience could undertake that, under the NTPCs, do not require a survey or monitoring. However, in the case of the community and social activities described by the native title party, I do not consider this to result in a finding that direct and substantial interference with them will be likely. Finally, the NTPCs provides a framework for parties to interact in relation to native title heritage issues and I see no reason to suggest Proton Geoscience would not have the intent, experience or capability to follow this framework in an appropriate manner.
In light of these reasons, I do not find that the grant of the proposed permit is likely to interfere directly with the carrying on of the native title party’s community and social activities.
Interference with areas or sites of particular significance: s 237(b)
Section 237(b) requires the Tribunal to consider whether there is a real chance or risk that the proposed future act is likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions. Whether the proposed future act is likely to cause such interference must be considered in light of the traditions relating to the area or site in question. A precondition of the inquiry is the identification of relevant areas or sites (see Yindjibarndi Aboriginal Corporation v FMG Pilbara Pty Ltd at [125]).
What sites or areas have been identified by the native title party in relation to the proposed permit area?
The native title party’s submissions on this point are limited and the only specific site or area identified in the material is Bluebush Swamp and its surrounding areas. The native title party notes that Bluebush Swamp covers an area of the Waanyi determination as well as an area that was formerly covered by the Gangalidda and Garawa People’s native title claim application (QUD66/2005) (but is currently not subject to any native title claim or determination). I note the area of Bluebush Swamp which is covered by the Waanyi determination is the only part of Bluebush Swamp that is also covered by the proposed permit (being the north eastern corner of the western portion).
The Bluebush Report was produced following a heritage survey conducted in 2011. The two-day survey involved seven Gangalidda people, who were determined to be the appropriate people to speak for the area being surveyed, with assistance from one Waanyi person. The Bluebush Report acknowledges an earlier cultural heritage survey parties conducted in 2010. The Bluebush Report states (at p 8) the 2010 cultural heritage survey established Bluebush Swamp as ‘a site of significance’, and (at p 3) an exclusion zone was established around the swamp. Mapping contained within the Bluebush Report shows the exclusion zone runs along the southern and eastern edge of Bluebush Swamp within what was then the Gangalidda and Garawa Peoples #2 native title claim. The Bluebush Report’s conclusions and recommendations state (at p 10) exploration activities ‘must observe the Exclusion Zone established in the 2010 cultural heritage survey… The traditional owners have stated that under no circumstances, and for no purpose, may any person enter this Exclusion Zone.’
The report describes the survey team’s attempt to access some drilling targets said to be located on the Bluebush Plain. The team were reluctant to access the sites by four-wheel drive across the black soil plain due to concerns about the health of some older survey participants. The team then discussed travelling to these sites with a smaller team. The report quotes one survey participant as stating “Anything close to Bluebush Swamp gotta be the senior’s job, [when exploration activity] come[s] close to all the story sites [i.e. the significant places]”. Other participants are quoted as saying “When it’s close to there, there’s a lot of thing [i.e. significant places] there [i.e. at Bluebush Swamp]”, and “strong story there…how it’s conducted will reflect on the community” (bracketed information in original).
The report states the survey team then discussed accessing the sites by travelling across the boundary of the Gangalidda and Garawa Peoples #2 claim (presumably into the Waanyi claim area). This idea was rejected as ‘likely to intensify existing tensions with Waanyi people’ (p 6-7). As a result of these discussions it was decided to postpone the survey of those drilling targets until such time as access might be arranged.
Is Bluebush Swamp an area or site of particular significance?
An area or site of particular significance is one of ‘special or more than ordinary significance’ (see Cheinmora v Striker Resources at 34). The particularity of its significance must be capable of being identified and the area or site must ‘clearly stand out in some way’ from other sites and the country at large. This recognises that certain areas or sites may be generally significant to native title holders, whereas others will be of particular significance in accordance with their traditions (see WF v Emergent Resources at [39]; Yindjibarndi v FMG Pilbara at [130]).
The State contends the evidence regarding Bluebush Swamp is not sufficient to show it is a site of particular significance. It states the Bluebush Report provides little explanation as to the significance of the site and the recommendations appear to place emphasis on keeping the peace between Gangalidda and Waanyi people rather than explaining any significance arising from traditions.
The State relies on my findings from Ngan Aak-Kunch v Glencore at [74] where I found the sites referred to in the native title party’s material were not:
…described in a way which suggests to me that they are of a kind which demand prohibition from ‘external or uninvited’ access for reasons of culture, spirituality, or the potential for adverse impact. For example, in the material, no ceremony invoked at a site before entry is described or explained, nor does the material speak to any consequences of access, such as adverse impact or harm.
I agree with the State’s submissions on this point. It is not sufficient for the native title party to simply make the contention that the site is of particular significance in accordance with s 237(b). Information regarding its nature and significance to the native title party is required.
It also appears quite apparent from the Bluebush report that the portion of Bluebush Swamp which is covered by the proposed permit is country for which the Waanyi people speak. There is a range of potential reasons why Waanyi chose not to exercise its right to lodge an objection against the expedited procedure statement in this instance. In the absence of further information I cannot presume to know what that reason is, but suffice to say Waanyi appear satisfied that the proposed permits may be granted without further negotiations. Based on the evidence before me, I am not satisfied the native title party has authority to speak for the area of Bluebush Swamp covered by the proposed permit.
Is the establishment of an exclusion zone likely?
Proton Geoscience has stated it will impose upon its employees and contractors an exclusion zone around any Aboriginal sites or areas of Aboriginal cultural significance registered with the State of Queensland and any site of significance identified during the conduct of any heritage surveys.
In the agreed statement of facts and issues provided, parties have raised as an issue of fact:
Whether (because of the application of the NTPCs or otherwise) it is likely that the native title party will be able to establish an exclusion zone or prevent Proton Geoscience carrying out activities pursuant to the proposed permit on any area which is of particular significance to the persons who are the holders of the native title in relation to that area, including land and waters which are:
(a)The subject only of Agreed Exploration Activities as defined in the NTPCs; or
(b)Not recorded as a Significant Aboriginal area on the Aboriginal Cultural Heritage Register under s 48 of the Aboriginal Cultural Heritage Act 2003 (Qld).
Based on the statement provided by Proton Geoscience, it seems unlikely that an exclusion zone would be established around any areas or sites of particular significance in the circumstances described above. This would be a relevant consideration if, for example, there was evidence before me of a site of particular significance within the proposed permit for which mere presence could be seen as interference. However, in the absence of evidence regarding the existence of any such sites or areas, this point does not bear much weight.
Are Proton Geoscience’s activities likely to interfere with any areas or sites of particular significance?
I am of the view that the native title party has not identified any areas or sites that are of particular significance in relation to the proposed permit area. Consequently, I cannot draw a conclusion that the proposed permit is likely to interfere with any areas or sites of particular significance.
Major disturbance to the land and waters concerned: s 237(c)
The issue of whether the proposed permits are likely to involve, or create rights whose exercise is likely to involve, major disturbance requires the Tribunal to make an evaluative judgment by reference to the expectations of the whole Australian community, including Aboriginal people (see Little v Oriole Resources at [52]−[54]).
The particular concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns, are relevant to that evaluation, provided they relate to the actual physical disturbance arising from the exercise of rights granted or created by the proposed future act (see Dann v Western Australia at 394, 401 and 413; Rosas v Northern Territory at [84]).
In evaluating the disturbance, the Tribunal is entitled to have regard to the context of the proposed grant, including previous land use, the characteristics of the relevant land and waters and the relevant regulatory regime.
Is the grant likely to result in major disturbance to the land and waters?
The native title party contends Proton Geoscience’s activities will:
·Create rights that allow Proton Geoscience to construct a camp on the Gangalidda area;
·Involve significant clearing of vegetation and drilling; and
·Involve the construction of a camp, roads and tracks.
The native title party contends even small disturbances to the Gregory River, Beames Brook and waterholes such as Willis Waterhole are viewed by the Gangalidda people as major disturbance. The native title party contends this is because of significant sites located along these waterways that may be affected and because these waterways are used for fishing, taking turtle, other bush foods and associated activities.
The native title party’s contentions on this point do little more than repeat the issues already dealt with under s 237(a) and (b). No evidence has been provided that goes to the particular characteristics of the land and waters within the permit area that may cause them to be at greater risk of disturbance. Further, there is no evidence from the native title party of the specific concerns of the Gangalidda people regarding major disturbance. There is no evidence of anything other than standard exploration activities proposed by Proton Geoscience.
The State contends, as indicated in the approved work program, the nature of the activities are limited and low impact. It contends the assertion that the activities will involve significant clearing and drilling should not be accepted, and the regulatory scheme imposed by the NTPCs, the Mineral Resources Act1989 (Qld) and the EPA will limit the extent of any clearing of vegetation. The State asserts the native title party would be notified of all proposed exploration activity and given an opportunity to meet and respond. It contends the activities of Proton Geoscience, subject to the NTPCs and mandatory provisions of the Land Access Code, are unlikely to cause a major disturbance to the land or waters.
I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
The determination of the Tribunal is that the grant of exploration permit EPM 26517 to Proton Geoscience Pty Ltd is an act attracting the expedited procedure.
Mr JR McNamara
Member
14 June 2018
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