Gooniyandi Aboriginal Corporation RNTBC v Kimberley Granite Quarries Pty Ltd and Another
[2016] NNTTA 1
•8 January 2016
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Aboriginal Corporation RNTBC v Kimberley Granite Quarries Pty Ltd and Another [2016] NNTTA 1 (8 January 2016)
Application No: WO2014/0848
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Gooniyandi Aboriginal Corporation RNTBC (native title party)
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Kimberley Granite Quarries Pty Ltd (grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 8 January 2016Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether Government party entitled to assert the expedited procedure – whether licence likely to interfere with community or social activities – whether licence likely to interfere with areas or sites of particular significance – whether the licence is likely to involve or create rights whose exercise is likely to involve major disturbance – whether conditions should be imposed – costs – expedited procedure applies
Legislation: Native Title Act 1993 (Cth), ss 85A, 169, 237
Native Title (Tribunal) Regulations 1993 (Cth), reg 9
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Dangerous Goods Safety Act 2004 (WA)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’)
Cheedy on behalf of the Yindjibarndi People v Western Australia (No 2) [2011] FCAFC 163 (‘Cheedy v Western Australia’)
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’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182; [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Freddie v Western Australia (2007) 213 FLR 247; [2007] NNTTA 37 (‘Freddie v Western Australia’)
Hale v Western Australia (2015) 233 FCR 96; [2015] FCA 560 (‘Hale v Western Australia’)
Holt v Manzie (2001) 114 FCR 282; [2011] FCA 627 (‘Holt v Manzie’)
Judy Hughes & Others on behalf of the Thalanyji People/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 191 (‘Hughes v Blackjack Resources’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (‘Tullock v Allarrow’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Rosas v Northern Territory (2002) 169 FLR 330; [2002] NNTTA 113 (‘Rosas v Northern Territory’)
Sharpe v State of Western Australia [2013] FCA 599 (‘Sharpe v Western Australia’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56
Western Desert Lands Aboriginal Corporation/Western Australia/Kitchener Resources; Scimitar Resources [2008] NNTTA 22 (‘Western Desert Lands v Kitchener Resources’)
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Echo Resources Ltd [2013] NNTTA 51 (‘WF v Echo Resources’)
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72 (‘Goonack v Geotech International’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the Mr Shahzad Rind, IndiEnergy Pty Ltd
native title party
Representative of the Mr Roy Arthur, Kimberley Granite Quarries Pty Ltd
grantee partyRepresentatives of the Ms Sarah Power, State Solicitor’s Office
Government party Ms Bethany Conway, Department of Mines and Petroleum
REASONS FOR DETERMINATION
[1]This decision concerns whether the State Government of Western Australia (‘the State’) can validly grant exploration licence E04/2356 to Kimberley Granite Quarries Pty Ltd (‘KGQ’), without the normal requirement for negotiations with the native title holders. That question arises because the Gooniyandi Aboriginal Corporation Registered Native Title Body Corporate (‘Gooniyandi Aboriginal Corporation’) has objected, on behalf of the native title holders, to the State’s assertion that the activities permitted by the grant of the licence are such that, under the Native Title Act 1993 (Cth), its grant can be expedited.
[2]The licence covers approximately 650 hectares of land situated 31 kilometres south-east of Fitzroy Crossing, an area in which the Gooniyandi Aboriginal Corporation holds non-exclusive native title rights and interests on trust for the Gooniyandi people. The Gooniyandi people were recognised as the common law native title holders for an area, which includes the licence, in a determination made by the Federal Court in Sharpe v Western Australia (‘the Gooniyandi determination’).
[3]As the Gooniyandi Aboriginal Corporation is the registered native title holder for the land and waters in which the licence is situated, it has the right to object to the State’s assertion that the expedited procedure applies to the grant of the licence. It has exercised that right and I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies. Parties provided a complex and wide ranging set of evidence and information supporting their contentions in this inquiry.
[4]A decision that the expedited procedure applies means the State can grant the licence to KGQ without negotiations with the Gooniyandi Aboriginal Corporation. A decision that the expedited procedure does not apply means that KGQ, the Gooniyandi Aboriginal Corporation and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence. These negotiations may take place with or without mediation assistance from the Tribunal.
[5]My task is to determine whether the grant of the licence is an act attracting the expedited procedure by reference to the criteria set out in s 237 of the Native Title Act. Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by the native title holders;
(b)interfere with areas or sites of particular significance in accordance with the traditions of the native title holders; and
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
[6]I must answer these questions by making a predictive assessment of whether the grant of the licence is likely to have those effects. In performing that assessment, 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 or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the explorers proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
[7]The Gooniyandi Aboriginal Corporation objects to the application of the expedited procedure on the basis that the grant of the licence will interfere directly with the community or social activities of the Gooniyandi ‘Wanglamarda Outcamp’ traditional owners, who are the traditional owners for the relevant area. The Gooniyandi Aboriginal Corporation also contends the licence is likely to interfere with areas and sites of particular significance to the Gooniyandi people, and is likely to involve major disturbance to the land and waters. It says KGQ must not enter the land unless it has obtained the formal consent of the Gooniyandi people and should be required to enter into a heritage protection agreement with the Gooniyandi Aboriginal Corporation before the licence is granted. It says the State has failed to take into account the public interest and the significance of the area to the native title holders, and has either not given effect to its own policies or given effect to them in a way which discriminates against the rights and interests of the Gooniyandi people.
[8]KGQ states it has an existing heritage agreement with the Gooniyandi Aboriginal Corporation in relation to adjacent tenements and has proposed the licence be incorporated into the agreement on the same terms and conditions. KGQ states it is expected only about 170 hectares of the licence area would initially be reviewed for granite formation, which will be undertaken on foot using hand-held tools, and the area will be accessed using existing tracks. The limestone formation found mainly on the licence is stated to be of no interest to KGQ (see further information outlined at [33] onwards of this decision).
[9]The State submits the activities proposed by KGQ suggest the licence will not have a substantial effect on the community or social activities carried on by the Gooniyandi people or the Wanglamarda Outcamp traditional owners and is unlikely to involve major disturbance to the land and waters. The State contends the evidence on which the Gooniyandi Aboriginal Corporation relies does not identify any areas or sites of particular significance to Gooniyandi people within the licence, and interference with areas or sites of this kind is unlikely to occur due to the operation of the Aboriginal Heritage Act 1972 (WA) and KGQ’s intention to consult with the Gooniyandi Aboriginal Corporation on heritage issues. The State submits that policies referred to by the Gooniyandi Aboriginal Corporation representative (such as the ‘good neighbour policy’) have no bearing on the issues to be determined. I agree with that submission and outline more on that issue later in this decision.
[10]Parties were invited to comment on a map of the licence and surrounding areas produced by the Tribunal’s Geospatial Unit, which I propose to rely on for the purpose of the inquiry. In response to comments from the State regarding the spatial relationship between the licence and one of the sites identified by the Gooniyandi Aboriginal Corporation, I circulated a second map which depicted the licence and surrounding areas at a smaller scale. I have relied on both maps for the purpose of this determination. No party objected to this course of action.
[11]I will address the following issues in these reasons:
(a)Was the State entitled to assert the expedited procedure?
(b)Is the grant of the licence likely to interfere with community or social activities carried on by Gooniyandi people?
(i) What are the community or social activities and where do they take place?
(ii) What is the relevance of the Gooniyandi Aboriginal Corporation’s registered native title rights and interests?
(iii) What activities does KGQ propose to undertake in the licence area?
(iv) What is the previous and existing use of the area?
(v) Is there a real risk of direct interference with the community or social activities?
(c)Is the grant of the licence likely to interfere with areas or sites of particular significance to Gooniyandi people?
(i) What areas or sites are identified by the Gooniyandi Aboriginal Corporation?
(ii) Are any of these areas or sites identified of particular significance to Gooniyandi people?
(iii) What are KGQ’s intentions with respect to heritage protection?
(iv) Is there a real risk of interference with the burial site?
(d)Is the grant of the licence likely to involve or create rights whose exercise is likely to involve major disturbance to land or waters?
(e)Should conditions be imposed?
(f)Can a costs order be made?
Was the State entitled to assert the expedited procedure?
[12]In the course of the inquiry, the Gooniyandi Aboriginal Corporation raised two issues regarding the application of State policy to the grant of the licence. First, the Gooniyandi Aboriginal Corporation contends that KGQ is required to address the concerns of pastoral interests and lease holders as part of the State’s ‘good neighbour policy.’ According to the Gooniyandi Aboriginal Corporation, the ‘good neighbour policy’ requires proponents in certain circumstances to seek the written consent and approval of pastoralists before entering certain categories of land. The Gooniyandi Aboriginal Corporation contends the ‘good neighbour policy’ should also extend to the Gooniyandi people so KGQ is required to obtain their written consent before the State can grant the licence.
[13]Second, the Gooniyandi Aboriginal Corporation contends the State ‘has not fully considered’ the public interest in ‘supporting the application for grant’ of the licence, including the importance of the area and the region to the Gooniyandi people or the economic benefit of the proposal. The Gooniyandi Aboriginal Corporation states there is no evidence as to what criteria or evaluative methods were considered before the State decided to assert the expedited procedure. The Gooniyandi Aboriginal Corporation also argues the State has not given effect to the policy statements in the Guidelines for Consultation with Indigenous People by Mineral Explorers, published by the Department of Mines and Petroleum in April 2014, which outline the State’s commitment to ‘progressing applications for exploration and prospecting licences’ through the expedited procedure ‘only after it is satisfied that the explorer has formally agreed to address Aboriginal heritage concerns within the tenement application.’
[14]On the first issue, the State contends the ‘good neighbour policy’ concerns the relationship between KGQ and the pastoral lessee at Gogo Station (which overlaps the licence by 100 per cent) and is of no concern to the Gooniyandi Aboriginal Corporation or the present proceedings. The State argues that any obligations or rights created under any agreement between KGQ and the pastoral lessee, including compensation for impacts to pastoral activity and consent for certain activities, are equally inapplicable to these proceedings.
[15]The Gooniyandi Aboriginal Corporation’s contention is that, by giving effect to the policy, the State has given ‘preferential treatment’ to the interests of others, such as pastoralists, over the interests of the determined native title holders. It is difficult to assess this claim in the absence of any material submission about the content of the policy, the administration of the Mining Act and its interaction with the Native Title Act. In any case, it is not clear how the issues are relevant to the inquiry, which is confined to the matters in s 237 (see Western Desert Lands v Kitchener Resources at [15], [21]-[25]).
[16]At a more general level, it is no challenge to the validity of the notice advertising the State’s intention to grant of the licence to say the State did not have regard to a policy, or did not consider the public interest or any other matter, before including the expedited procedure statement. The State’s discretion to include the statement is ‘entirely unfettered’ (see Holt v Manzie at [25]). The State is not required to show it directed its mind to the criteria set out in s 237 or any other matter (see Cheinmora v Striker Resources at 42). It is not relevant to assert the State did not have regard to matters such as the public interest, or even its own policies. Once the State decides to include the expedited procedure statement, it is a matter for the native title party to lodge an objection to the inclusion of the statement and, provided the notice is otherwise valid, for the Tribunal to consider the merits of the objection.
Is the grant of the licence likely to interfere with community or social activities carried on by Gooniyandi people?
What are the community or social activities and where do they take place?
[17]The Gooniyandi Aboriginal Corporation contends the licence will directly interfere with the carrying on of the community and social activities of the Gooniyandi ‘Wanglamarda Outcamp’ traditional owners. According to the Gooniyandi Aboriginal Corporation, the licence is located in an area which extends outwards from Outcamp Hill (also known as Garliwarra or Giliwarra). This area is said to contain water and drinking springs which are important to the community and social activities of the Gooniyandi Wanglamarda people, who ‘hold a special connection to the area because of family connections.’ The Gooniyandi Aboriginal Corporation states the Gooniyandi Wanglamarda and the wider family actively hunt in the determination area and rely on a range of traditional foods and bush tucker which are hunted and gathered in the licence area.
[18]The Gooniyandi Aboriginal Corporation relies on the affidavit of Billy Chestnut. Mr Chestnut is a senior law man and common law native title holder for the area in which the licence is situated. Mr Chestnut states he is authorised to make his affidavit on the basis that he is a recognised and acknowledged elder and can speak on behalf of the Gooniyandi people and the Gooniyandi Wanglamarda. He states he grew up in the area in and around Outcamp Hill and the area is well known to him. He describes the area as his ancestral country and says it is special to his family. I accept Mr Chestnut is authorised to give evidence in this matter on behalf of the native title holders.
[19]Mr Chestnut states he goes hunting for goanna, snake, kangaroo, echidna and emu in ‘the flat country’ within the licence area. He also hunts for hill kangaroo and other animals around Outcamp Hill. He says these animals are ‘very important food sources for our people’ and there are ‘lots of birds and animals in the area.’ Some of these animals, such as the wedge-tailed eagle, hawks and crows, are said to hold meaning for country and for Gooniyandi people. Mr Chestnut also refers to bush medicine, which he says is collected from ‘that area and the area around Outcamp Hills down into the flat country.’
[20]Mr Chestnut states Gooniyandi people have an obligation to look after country, including the land, waters, birds and animals. He says he must also look after any burial sites and caves as well as the dreaming tracks that travel across his country. While Mr Chestnut does not describe any activities involving water (apart from generally looking after waters), he does state that Ngoojingarri Springs are located within the vicinity of Outcamp Hill and ‘within the footprint of the exploration area.’
[21]The State contends that, other than generally identifying water and drinking springs within the determination area, and to a lesser extent within the licence area, the Gooniyandi Aboriginal Corporation has given no evidence of community or social activities that occur in relation to those waters. The State acknowledges the reference to Ngoojingarri Springs in Mr Chestnut’s affidavit, but says it is unclear whether the expression ‘within the footprint of the exploration area’ means there are any springs or waterways within the licence, as opposed to the wider determination area (noting that Outcamp Hill appears to be outside the licence area).
[22]In relation to hunting and gathering, the State contends the evidence only establishes that Mr Chestnut sometimes visits the licence area for hunting and that he and others sometimes go there to collect bush medicine. The State argues there is no suggestion traditional owners ‘actively hunt’ in the licence area and says it should be inferred that Mr Chestnut visits the area only occasionally. The State submits that the Gooniyandi Aboriginal Corporation has not provided evidence of any other community or social activities, such as camping or fishing.
[23]I accept Mr Chestnut hunts from time to time in the vicinity of Outcamp Hill and on the flat country within the licence area. Although Mr Chestnut does not explain what he means by the flat country, I take it to mean the plain extending northwards from Outcamp Hill and eastwards into the licence area. Judging from the second Tribunal map, this plain terminates at a ridge which divides the licence area approximately half a kilometre from the western boundary at its widest extent. Outcamp Hill itself appears to be approximately 300 to 500 metres outside the south western boundary of the licence.
[24]I also accept Mr Chestnut, and possibly other people who identify as Gooniyandi or Gooniyandi Wanglamarda, collect bush medicine from these areas. However, the evidence of Mr Chestnut does not disclose the frequency with which these activities are carried on within the licence area, either in absolute terms or compared to other places within the determination area. There is some evidence regarding the existence of water sources in the vicinity of the licence area (for example, the State’s Quick Appraisal document notes three minor watercourses and a spring), which supports the Gooniyandi Aboriginal Corporation’s contention that the area is amenable to hunting, however, there is no evidence regarding the use of these water sources by Gooniyandi people.
[25]While I accept Gooniyandi people and members of the Gooniyandi Wanglamarda have certain obligations to country, the evidence of Mr Chestnut does not give any indication of the kinds of activities carried out in performance of those obligations.
What is the relevance of the Gooniyandi Aboriginal Corporation’s registered native title rights and interests?
[26]The Gooniyandi Aboriginal Corporation contend the grant of the licence will create rights and interests for the benefit of KGQ which are inconsistent with the Gooniyandi native title determination and will conflict with the registered native title rights and interests held by the Gooniyandi Aboriginal Corporation. The Gooniyandi Aboriginal Corporation states that, as the determined native title holders, the Gooniyandi Wanglamarda are entitled to exercise those rights and interests ‘at their will and discretion.’ In support of this argument, the Gooniyandi Aboriginal Corporation relies on paragraph 10 of the Gooniyandi determination, which provides:
For the avoidance of doubt, subject to the qualifications in paragraphs 7 to 9, the manner of exercise of native title rights and interests recognised by this Determination is a matter for the native title holders to determine having regard to, and in accordance with, their traditional laws and customs.
[27]The State contends that, while the native title holders are entitled to exercise the rights and interests recognised in the Gooniyandi determination, subject to qualifications such as the operation of general law, the exercise of those rights does not prevent activities from being exercised under other rights and interests. Furthermore, the State notes that, to the extent these other rights and interests are inconsistent with the native title rights and interests, the native title rights have no effect.
[28]In defining what constitutes ‘an act attracting the expedited procedure,’ the Native Title Act refers to the proposal’s likely effect on the community or social activities of the native title holders. Although these activities must arise from registered native title rights and interests (see Tullock v Western Australia at [93]-[103]), it does not follow that activities of a community or social nature are carried on wherever native title rights and interests are recognised to exist (see Hughes v Blackjack Resources at [6]). The existence of registered native title rights and interests only addresses the threshold issue of whether there is a right to object. It does not answer the question of whether the proposal is likely to affect community or social activities carried on by the native title holders (see Silver v Northern Territory at [41]-[45]).
[29]In any case, the Gooniyandi determination recognises the exercise and enjoyment of the native title rights and interests is not unqualified. For example, paragraph 7 provides that the native title rights and interests do not confer a right of possession, occupation, use and enjoyment to the exclusion of others or the right to control the access of others. Paragraph 9(a) provides that the native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth. Paragraph 13(b) provides that the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under other rights and interests, including rights and interests granted by the State pursuant to statute.
[30]Although the grant of rights and interests under State legislation is ultimately subject to the Native Title Act, the test in the present inquiry is not whether the proposed grant will create rights and interests which conflict with the native title rights and interests recognised in the determination, but whether it is likely to interfere directly with the community or social activities carried on by the native title holders in the exercise of their native title rights and interests. Mere reference to the existence of registered native title rights and interests and the inconsistency of the rights and interests proposed to be granted does not require the conclusion that the grant is likely to interfere with community or social activities carried on by the native title holders.
What activities does KGQ propose to undertake in the licence area?
[31]The nature of the proposed exploration is outlined in a letter signed by Roy Arthur, director of KGQ. Although the information in the letter is not presented in the form of a sworn affidavit or statutory declaration, I am satisfied it is appropriate to give weight to the document as a statement of the explorer’s intentions.
[32]The letter states the purpose of the application is the exploration and assessment of possible granite formations contiguous to KGQ’s granted mining and exploration tenements, which border the eastern boundary of the licence. It states only 170 hectares in the south-eastern portion of the licence area would be initially reviewed to assess the suitability of granite formations. The remaining area is covered by a limestone formation which is of no interest to KGQ.
[33]The planned exploration, as outlined in the letter, will be undertaken over three visits during the first year of grant. The planned exploration will comprise basic regolith mapping of prospective formations, which will be completed by walking through the area and inspecting rock types. According to KGQ, these activities will only require the use of hand tools. The letter states no ground clearance work will be undertaken and it is not expected that an Aboriginal heritage survey or rehabilitation program will be required. It also states the licence will be accessed by way of existing pastoral tracks.
[34]The Gooniyandi Aboriginal Corporation argues that, unless there is an agreement in place between KGQ, the State and the Gooniyandi people, the exact detail of the proposed activity and the risks to country cannot be determined. The Gooniyandi Aboriginal Corporation contends that, in the absence of such an agreement, the licence will permit KGQ to carry on ground-disturbing activity at its own discretion. KGQ says it has proposed that parties adopt the terms and conditions contained in an existing heritage protection agreement entered into by the parties for adjacent tenements, but the proposal has not been accepted by the Gooniyandi Aboriginal Corporation.
[35]I am required to make an assessment of whether the grant of the licence is likely to interfere with community or social activities carried on by the native title holders. As the Federal Court held in Smith v Western Australia (at [23]), the assessment is not confined to a consideration of the legal rights conferred by the grant of the licence. The manner in which KGQ intends to exercise the rights conferred by the licence is relevant to the assessment I am required to make (see Silver v Northern Territory at [25]-[32]; Little v Oriole Resources at [55]-[57]).
[36]In the present circumstances, I am satisfied KGQ’s letter outlines the activities it intends to undertake on the licence and I have given it appropriate weight in determining the likely impact of the licence, notwithstanding the fact that KGQ has not entered into an agreement with the Gooniyandi Aboriginal Corporation with respect to the licence.
What is the previous and existing use of the area?
[37]In assessing the likely effect of the licence on the community or social activities of the native title holders, I am entitled to have regard to the previous and existing use of the area. For example, the existence of mining or pastoral interests which may have affected, and may continue to affect, the carrying on of community or social activities by the native title holders may be taken into account in evaluating whether the grant of the licence is likely to involve a direct interference with these activities (see Walley v Western Australia at [12]).
[38]The State notes the licence area is currently subject to pastoral lease 398/10 (Gogo Station). The State also notes the area has previously been subject to: a historical lease, which overlapped the licence area in its entirety; six exploration licences, four of which covered the entire area;[1] eight mineral claims, each of which overlapped the area by up to 16 per cent; and two temporary reserves.
[1] I note the Tengraph Quick Appraisal provided by the State indicates only five of these exploration licences actually proceeded to grant, and only three of them entirely overlapped the area.
[39]The State also refers to three mining leases said to have been granted over the area. However, the Tengraph Quick Appraisal document provided by the State, which outlines the tenure of the land, suggests the applications did not proceed to grant. The Quick Appraisal does indicate the existence of a petroleum exploration permit, which currently affects the entire area of the licence.
[40]KGQ states it is not aware of any prior exploration activities within the licence area, though it notes the area is heavily grazed by the pastoral lease holder and has also been subject to periodic burning, which has been used as a land management tool by the pastoralist. The Gooniyandi Aboriginal Corporation contends I should take into account the fact that pastoral activities differ from mineral exploration.
Is there a real risk of direct interference with the community or social activities?
[41]The Gooniyandi Aboriginal Corporation contends the grant of the licence will ‘create conflicting interests’ and impact on community and social life. In particular, the Gooniyandi Aboriginal Corporation submits the use of machinery, drilling equipment, and the movement of heavy and light vehicles will create noise, dust and ‘toxic emissions’ which will scare away or ‘negatively impact’ the animals and birds hunted by the Gooniyandi Wanglamarda. In this regard, the Gooniyandi Aboriginal Corporation argues the conditions on which the State proposes to grant the licence do not sufficiently or adequately address matters such as: the impact of drilling; waste water; dust; noise; the storage of fuels and chemicals; emissions and carbon; and the overall physical footprint of the project. The Gooniyandi Aboriginal Corporation submits the licence will fetter the ability of the Gooniyandi Wanglamarda to gather traditional food and cultural items, particularly where there is uncertainty about the impact of exploration on access to traditional lands and the health of traditional bush foods.
[42]The State submits the activities proposed by KGQ are considerably less than the activities anticipated by the Gooniyandi Aboriginal Corporation and are unlikely to interfere with activities such as hunting. It argues a nexus has not been established between the issues which the Gooniyandi Aboriginal Corporation says are inadequately addressed by the State’s proposed conditions and any apprehended interference with the community and social activities of the Gooniyandi Wanglamarda. The State argues that, given the limited nature of the rights conferred by the licence, there is little prospect access will be prevented in any substantial way, especially given KGQ’s willingness to enter into an agreement with the Gooniyandi Aboriginal Corporation.
[43]Considering the limited nature of the exploration proposed by KGQ, I find the grant of the licence is unlikely to have a substantial or more than trivial effect on the community or social activities carried on by the Gooniyandi Wanglamarda or other Gooniyandi people in the licence area. There is no evidence the proposed exploration will involve the environmental effects described by the Gooniyandi Aboriginal Corporation. The grant of the licence is unlikely to prevent access to the area for the purposes of hunting and gathering, particularly in light of the limited period in which the exploration will be conducted. In reaching this conclusion, I have had regard to the size of the area targeted for exploration and its distance from the areas where these activities are said to occur, namely Outcamp Hill and the flat country west of the ridge. I have also taken into account the fact that community and social activities such as hunting have already been and will continue to be subject to the lawful exercise of rights held by the pastoral leaseholder, which is likely to have constrained to some degree the free exercise and enjoyment of the Gooniyandi people’s native title rights and interests.
[44]For the above reasons, I find the grant of the licence and the exercise of the rights conferred on KGQ is unlikely to directly interfere with the community or social activities of the Gooniyandi Wanglamarda or the Gooniyandi people generally.
Is the grant of the licence likely to interfere with areas or sites of particular significance to Gooniyandi people?
What areas or sites are identified by the Gooniyandi Aboriginal Corporation?
[45]If an area or site is claimed to be of particular significance to the native title holders, it must be capable of identification (see Silver v Northern Territory at [91], citing Western Australia v McHenry).
[46]The Gooniyandi Aboriginal Corporation contends the licence area is special to Mr Chestnut, the Gooniyandi Wanglamarda and the broader Gooniyandi community. In particular, the Gooniyandi Aboriginal Corporation contends the licence area contains or encroaches upon several areas and sites of particular significance to the Gooniyandi Wanglamarda and Gooniyandi people in general.
[47]One of these areas is Outcamp Hill, which the Gooniyandi Aboriginal Corporation describes as a registered site (I note that, while it is situated in close proximity to the hill, the registered site is ‘Pinbilly 8’). The registration refers to it being on the Department of Aboriginal Affairs (‘DAA’) Aboriginal Sites Database. Gooniyandi Aboriginal Corporation submits the area identified as Outcamp Hill or Hills, and which is also referred to as Garliwarra or Giliwarra, is in ‘very close vicinity and adjacent to’ and ‘flows into’ the licence area.
[48]In the Gooniyandi Aboriginal Corporation’s submission, the area is one of particular significance to Gooniyandi people, including Mr Chestnut and the wider family. The Gooniyandi Aboriginal Corporation submits there are ‘many reasons’ why the area is important to Gooniyandi people, including the fact it contains the burial site of the apical ancestor for the Chestnut family. This is supported by the evidence of Mr Chestnut, who states ‘the area’ contains a burial site of an important family member. Mr Chestnut describes the site as a ‘no go area’ for non-Gooniyandi people and says he is in the process of registering it with the DAA.
[49]The State argues there is no evidence as to the location of the burial site. It submits Mr Chestnut’s statements regarding the burial site provide an insufficient evidentiary basis for any conclusions as to the existence of an area or site of particular significance within the licence area. The State submits there is no indication as to the source of the Gooniyandi Aboriginal Corporation’s contention the burial site is located at Outcamp Hills and says that contention should not be accepted.
[50]There is a degree of ambiguity around the location of the burial site. Mr Chestnut simply states that ‘the area has...a burial site.’ It is not clear whether he is referring to the licence area or the area around Outcamp Hill. The Gooniyandi Aboriginal Corporation contends all Gooniyandi people ‘and some local people’ know the burial site is located at Outcamp Hill.
[51]The first Tribunal map indicates the existence of an ‘other DAA site’ to the east of the licence area. The site is named ‘Outcamp Hill’ and designated as an ‘other heritage place,’ meaning the site has not been registered under the Aboriginal Heritage Act. The entry for Outcamp Hill on the Aboriginal Sites Database shows its status as ‘lodged,’ which means an application has been made for registration of the site but has yet to be assessed. The entry on the database also indicates the site is classified as ‘skeletal material/burial’ and notes that some of the information relating to the site is considered culturally sensitive and, to preserve confidentiality, the exact location and extent of the site have not been displayed.
[52]In light of the information on the Aboriginal Sites Database, the statements made in affidavit of Mr Chestnut, and the Gooniyandi Aboriginal Corporation’s contentions, I infer that the burial site is the same site identified as ‘Outcamp Hill’ on the Aboriginal Sites Database. I therefore find the burial site is located on or in the vicinity of Outcamp Hill, within the boundaries represented on the database and depicted on the first Tribunal map.
[53]The Gooniyandi Aboriginal Corporation also contends the licence area is connected with a special Dreamtime story. This is supported by the evidence of Mr Chestnut, who relates a story about a man who passed through the licence area on his way to Outcamp Hill.
[54]The State contends a Dreamtime story is neither an area nor a site, though it acknowledges there may be areas or sites associated with the story. The State argues the only possible area or site of particular significance associated with the story which is relevant to the licence is Outcamp Hill, though it submits there is insufficient evidence regarding the precise location and extent of the site.
[55]I accept that areas and sites associated with Dreamtime stories are capable of being areas or sites of particular significance within the meaning of the Native Title Act. In this instance, there are two ‘areas’ associated with the story which are relevant to the licence: first, the Outcamp Hill area; and second, the areas within the licence which the man is said to have traversed. The only evidence regarding the location of the areas within the licence is Mr Chestnut’s statement that the man’s journey ‘went over’ the licence area. There is no indication of the path taken by the Dreamtime story or any particular areas or sites associated with the story. In my view, the evidence does not sufficiently identify the 'areas' within the licence associated with the story.
[56]In relation to Outcamp Hill, the only evidence regarding its relationship to the Dreamtime story is Mr Chestnut’s statement the man ‘went through the area of Garliwarra.’ Although Mr Chestnut does not describe the boundaries of this area, there is an evident distinction in his evidence between the ‘flat country’ which extends into the licence area (and where Mr Chestnut hunts for goanna, snake, kangaroo and emu) and the area around Outcamp Hill (where hill kangaroo and other animals are hunted).
[57]In its contentions, the Gooniyandi Aboriginal Corporation states the traditional Gooniyandi name for the area within the licence and adjacent to Outcamp Hills is Giliwarra. It also states the registered site at Outcamp Hill (that is, Pinbilly 8) ‘flows into’ the licence area. While the boundaries of the Pinbilly 8 site do extend a small distance into the licence area, there is no discernible connection between that site (which is recorded as an ‘artefact/scatter’ site) and Outcamp Hill. I accept the Outcamp Hill/Garliwarra/Giliwarra area is larger than the hills themselves. However, there is no evidence it extends as far as the western boundary of the licence. Mapping suggests Outcamp Hill is approximately 300 to 500 metres from the boundary of the licence.
[58]Mr Chestnut also deposes to the presence of caves and paintings in the area, which he says ‘must be protected.’ He states these places should be ‘blocked off so that people that do not have permission cannot go there and they are protected from mining and exploration and other business.’ The Gooniyandi Aboriginal Corporation also contends the area contains stone tools and artefact scatters, many of which are not easily identified by people who are not Gooniyandi or who lack the requisite training. Apart from Pinbilly 8, none of these sites are identified with any degree of precision. In any event, given the level of generality at which they are described, it cannot be said that any of the sites ‘clearly stands out in some way from the general background of other sites and the country as a whole’ (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [130]).
Are any of the areas or sites identified of particular significance to Gooniyandi people?
[59]An area or site of particular significance is one of ‘special or more than ordinary’ significance in accordance with the traditions of the native title holders (see Cheinmora v Striker Resources at 34).
[60]In relation to the burial site, the State contends it does not ‘stand out’ from the general background of other sites and the country as a whole. Similarly, the State argues there is insufficient evidence as to why the Outcamp Hill/Garliwarra/Giliwarra area is of particular significance to the native title holders.
[61]I agree there is little evidence about the significance of the Outcamp Hill area. The only apparent connection between the area and the traditions of the native title holders is the fact the man in the Dreamtime story passed through the area. The significance of this fact and the broader significance of the Dreamtime story have not been established. The Gooniyandi Aboriginal Corporation contends the full details of the story are culturally sensitive and cannot be told to non-Gooniyandi people. However, as the State submits, Mr Chestnut does not attest that any cultural restrictions apply, and it was open to the Gooniyandi Aboriginal Corporation to seek non-disclosure directions. In fact, such non-disclosure directions were requested by the Gooniyandi Aboriginal Corporation in relation to confidential and without prejudice documents which had been exchanged between the Gooniyandi Aboriginal Corporation and KGQ and which KGQ sought to adduce in this inquiry. These directions were granted with all parties agreeing to the terms of the directions prior to them being made. No further request was made for such directions in relation to culturally sensitive information. It is not clear why the Outcamp Hill area is of greater significance than other areas over which the man in the story is said to have travelled. On the basis of the evidence before me, I do not find Outcamp Hill is an area of particular significance to the native title holders. In any case, there is no evidence as to how the proposed exploration activity might interfere with the site, given Outcamp Hill is some distance from the licence.
[62]On the other hand, I do not accept the States contention that the burial site does not ‘stand out’ from other sites and the country as a whole. Mr Chestnut deposes the site contains the remains of an important family member, who is described by the Gooniyandi Aboriginal Corporation as the apical ancestor for the Chestnut family and the wider family group. Mr Chestnut states the burial is a ‘no go area’ for non-Gooniyandi people and says ‘no white people should go into that area without our consent.’ He also states there are spirits in that area. In light of this evidence and Mr Chestnut’s particular association with the area, I find the burial site is of particular significance to the native title holders in accordance with their traditions. Whether the burial site will be interfered with by activities of KGQ is discussed in more detail in this decision at [68]-[75].
[63]The only other site identified with any particularity is Pinbilly 8. As noted above, Pinbilly 8 is recorded on the Aboriginal Sites Database as an ‘artefacts/scatter’ site. The Gooniyandi Aboriginal Corporation contends that artefact scatters ‘are very important to Gooniyandi people, due to the historic and cultural values and spiritual connection to the areas and items.’ Although this statement can be generally accepted, there is no evidence in the present matter which demonstrates the significance of artefact sites according to the traditions of the Gooniyandi people, or the particular significance of Pinbilly 8. In the circumstances, I do not find that Pinbilly 8 is a site of particular significance to the native title holders.
What are KGQ’s intentions with respect to heritage protection?
[64]KGQ states it has entered into a heritage protection agreement with the Gooniyandi Aboriginal Corporation in respect of existing mining and exploration tenements which border the eastern boundary of the proposed licence. KGQ says it has proposed that the terms and conditions contained in that agreement be applied to the licence by way of a deed of variation. The operative parts of the agreement are not before me and the proposal has not been accepted by the Gooniyandi Aboriginal Corporation.
[65]KGQ states its approach prior to the inquiry shows it is aware of the requirements of operating under both the Native Title Act and the Aboriginal Heritage Act. KGQ says its approach has been to manage all heritage requirements ‘under the same rules and responsibilities’ of the current heritage protection agreement and believes the concerns expressed by the Gooniyandi Aboriginal Corporation would be ‘clearly covered and appropriately managed’ if the heritage protection agreement were applied to the licence.
[66]KGQ states it is aware of Pinbilly 8, but notes it is over one kilometre from the granite area of interest on the licence, and is separated from that area by an extension of the Billy Hills limestone formation. KGQ states it is aware of other sites of significant importance in the greater area, but has received advice from DAA that none of these places intersect with the licence area. KGQ states no ground clearance work will be undertaken and expects an Aboriginal heritage survey will not be required.
[67]The State argues the existing heritage protection agreement and KGQ’s willingness to enter into the same or a similar agreement for the licence indicates its willingness to work with the Gooniyandi Aboriginal Corporation to avoid disturbance to areas or sites of particular significance. Regardless of KGQ’s intentions, the State has also signalled its intention to impose a condition requiring KGQ to offer a regional standard heritage agreement if KGC is requested to do so by the Gooniyandi Aboriginal Corporation. The State indicates the proposed condition will allow the Gooniyandi Aboriginal Corporation to choose a regional standard heritage agreement from one of the other representative regions, noting the Kimberley does not have its own regional standard heritage agreement.
Is there a real risk of interference with the burial site?
[68]The Gooniyandi Aboriginal Corporation contends that, unless there is an agreement in place which allows a process of identification, protection and mitigation in relation to sites of significance to the Gooniyandi people, there is a likely and serious risk of harm to and destruction of those sites as a result of KGQ’s exploration activities. For example, the Gooniyandi Aboriginal Corporation argues the act of driving across country to access areas of proposed exploration activity, and the activity itself, is likely to destroy artefact scatters unless they are properly identified, recorded and protected. A similar argument could presumably be made with respect to the burial site, though it was not specifically advanced by the Gooniyandi Aboriginal Corporation.
[69]The State argues interference is unlikely to occur given the low-impact and non-intrusive nature of the proposed exploration. It submits I should give weight to the finding of RD Nicolson J in Little v Western Australia that, given the protective effect of the Aboriginal Heritage Act, interference with areas or sites of particular significance is unlikely to occur. The State also draws attention to prior exploration and possible mining activity that has occurred in the area, as well as the presence of the pastoral lease.
[70]Although I must have regard and give weight to the regulatory regime, each matter must be considered on its own facts (see Cherel v Faustus Nominees at [81]-[91]). The Gooniyandi Aboriginal Corporation contends there is no certainty that KGQ will comply with the Aboriginal Heritage Act or that it will be sufficient to prevent interference. I accept the conduct to which the Aboriginal Heritage Act applies does not cover every kind of activity which might involve interference within the meaning of the Native Title Act. This was recently acknowledged by Member McNamara in Western Desert Lands v Teck Australia. However, as the State points out, Member McNamara went on to say in that matter (at [114]):
merely recognising that conduct may constitute interference without contravening s 17 [of the Aboriginal Heritage Act] does not require the conclusion that interference is likely to occur unless there is evidence to support the finding that the [Aboriginal Heritage Act] will not adequately protect against the risk of interference.
[71]The State also relies on the Tribunal’s decision in Freddie v Western Australia, where Deputy President Sumner found the Aboriginal Heritage Act and its protective regime ‘will normally be sufficient’ to ensure that interference is unlikely to occur, albeit there are circumstances where this will not be the case, ‘taking into account the nature of any sites, whether the area is “site rich”, whether there is an area of particular significance, the nature and size of such an area and the intentions of the grantee party with respect to the protection of sites’ (at [51]).
[72]Mr Chestnut describes the burial site as a ‘no go area’ for non-Gooniyandi people. He also states that white people should not enter the area without the consent of Gooniyandi people. This is consistent with the way the site is recorded on the Aboriginal Sites Database. It has been accepted in previous decisions of the Tribunal and the Federal Court that unauthorised entry into areas where access is restricted under traditional laws and customs may constitute interference under the Native Title Act (see for example Tullock v Allarrow at [40]; FMG Pilbara v Yindjibarndi Aboriginal Corporation at [64]-[76]). However, in this case, the burial site appears to be situated outside the licence area.
[73]I am entitled to have regard to the risk of interference with areas or sites outside the land and waters affected by the licence, provided there is a clear nexus between the activities proposed and the apprehended interference (see Silver v Northern Territory at [35]). The Gooniyandi Aboriginal Corporation has drawn attention to the possibility that KGQ could interfere with areas such as the burial site by driving through them to access exploration targets within the licence area. I accept it is conceivable that, if KGQ were to approach the licence from the Great Northern Highway without first consulting with the native title holders, this kind of interference may occur. It is also an activity unlikely to require the conduct of a heritage survey under the terms of a regional standard heritage agreement.
[74]Nevertheless, I do not consider this to be a real chance or risk in the circumstances. KGQ is aware of the site, if for no other reason than its participation in this inquiry. The site is recorded on the Aboriginal Sites Database and, although the boundaries depicted in the database do not reveal the actual location of the site, I accept KGQ is now on notice that it must exercise care in relation to this area. In this regard, I note KGQ has previously demonstrated its willingness to consult and work with the Gooniyandi Aboriginal Corporation and the native title holders to avoid interference with heritage sites. Importantly, KGQ has indicated its intention to access the licence using existing pastoral tracks, which is likely to reduce the risk of interference. As the area is currently subject to a pastoral lease, these tracks are presumably still in use by the pastoralist, and it has not been suggested that pastoral activities have interfered in any way with the burial site.
[75]For these reasons, I find the grant of the licence and the exercise of the rights conferred is unlikely to interfere with areas or sites of particular significance to the native title holders.
Is the grant of the licence likely to involve or create rights whose exercise is likely to involve major disturbance to the land or waters?
[76]The Gooniyandi Aboriginal Corporation contends the grant of the licence and the exercise of the rights conferred will involve major disturbance to the land and waters in the following ways:
(a)The presence of mining employees and equipment will cause disturbance and, in the absence of a native title or heritage agreement, create conflict and social disturbance.
(b)Traditional water sources are located in or around the licence area.
(c)The use of ground disturbing equipment will generate dust, affect air quality and create noise.
(d)The use of chemicals during drilling activities will cause harm and could be hazardous for workers, the land and waters, flora and fauna.
(e)Drilling will impact the social and community activities of the Gooniyandi Wanglamarda; the Pinbilly 8 registered site; the burial site; and the access, use and enjoyment of the area by Gooniyandi people.
(f)Closure of the project area will cause major disturbance to the use and enjoyment of country by the Gooniyandi Wanglamarda.
(g)The exploration activities will create a fire hazard.
(h)Light and heavy vehicle movement will cause major disturbance if suitable tracks and access roads are not planned with and agreed to in advance by Gooniyandi people.
(i)The activities of KGQ will conflict with the use and enjoyment of the land and waters by the Gooniyandi people, which is unfair and goes against the rights and interests recognised in the determination of native title.
(j)The type of exploration proposed and the absence of conditions dealing with matters of health and safety will cause significant concern and anxiety to the Gooniyandi Wanglamarda.
[77]The State contends major disturbance requires significant, direct physical disturbance of the land or waters. It argues the expedited procedure does not provide native title holders with a right of veto and is not a mechanism through which rights of exclusive possession may be enforced. It notes KGQ has been clear about the nature of its intended activities and submits there is no evidence those activities will affect air quality or create noise pollution. The State says it is unclear whether KGQ’s activities will involve the use of chemicals, but argues the storage and disposal of potentially hazardous substances is addressed by the proposed endorsements and conditions to be imposed on grant, and governed by legislation, including the Dangerous Goods Safety Act 2004 (WA).
[78]The State also argues there is no evidence project areas will be closed for significant periods of time, and the evidence of KGQ suggests any restrictions on access will be temporary. Similarly, the State submits there is no evidence drilling will affect the Gooniyandi people’s social and community activities, artefact scatters or other areas of significance to the native title holders. In relation to health and safety concerns, the State says they are irrelevant to the inquiry and there is no evidence KGQ is likely to act in breach of the relevant statute law and regulations, or in breach of the conditions imposed on the grant of the licence.
[79]The assessment of whether a proposal is likely to involve major disturbance to the land and waters concerned must be undertaken on the basis of what is likely to be done rather than what could be done (see Little v Oriole Resources at [51]). In the present case, KGQ has stated the planned exploration will be undertaken over three visits in the first year of grant and will be carried out using hand tools rather than mechanised equipment. It has also indicated the proposed exploration will not involve ground clearing work. There is no indication KGQ will exercise the rights conferred by the licence other than in accordance with its stated intentions.
[80]The term ‘major disturbance’ must be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. The concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns are relevant in evaluating the degree of disturbance (see Little v Oriole Resources at [52]-[54], referring to Dann v Western Australia at 395, 401 and 413). However, the activities must involve physical disturbance to the land and waters (see Rosas v Northern Territory at [84]).
[81]It is not in dispute that the licence will confer on KGQ rights that are wholly or partly inconsistent with the continued existence, enjoyment or exercise of the rights and interests recognised in the Gooniyandi determination. One of the objects of the Native Title Act is to establish ways in which future dealings which affect native title may proceed and to set standards for those dealings. This inquiry is part of a legislative regime established under the Native Title Act for the purpose of determining whether and on what conditions a specific class of dealings affecting native title may validly proceed. Although considerations of fairness are relevant to the way the inquiry is conducted, the outcome will ultimately turn on weighing up the evidence and information provided by parties, and the consideration of criteria which the Tribunal is required to take into account when making its determination (specifically, s 237 of the Native Title Act).
[82]I acknowledge that traditional laws and customs may require people to seek permission before entering Gooniyandi country. Nevertheless, I do not consider the mere presence of non-Gooniyandi people is likely to involve major disturbance to the land or waters, particularly given the scale of the proposed exploration. I accept the native title holders may be unhappy or even anxious about the idea of strangers coming onto Gooniyandi country and conducting exploration without their consent. However, this does not on its own amount to major disturbance to the land or waters concerned (see, for example, Goonack v Geotech International at [44]). As the State correctly notes, the Native Title Act does not give native title holders a right of veto over exploration activity.
[83]Given the character of the proposed exploration, the risk of major disturbance to the land and waters is remote. It is not clear how the activities proposed would create a fire hazard and, considering the exploration will be carried out using hand tools, it is unlikely any dust or noise generated by the activities will have an appreciable effect on the environment. While it is uncertain whether the proposed exploration will involve any on-site chemical testing, I accept the State’s submission that the risk of environmental harm arising from the use of hazardous substances will be mitigated by the proposed endorsements and conditions, which includes an endorsement drawing KGQ’s attention to the relevant guidelines, and the applicable legislative regime.
[84]I accept the movement of vehicles may have an adverse effect on the land, including local flora and fauna. However, I note KGQ intends to utilise existing pastoral tracks to access and travel within the licence area. Though it is possible areas of interest within the licence may not be accessible using existing tracks, given the scale of the proposed exploration and KGQ’s intention to consult with the native title holders, I do not accept the movement of vehicles will constitute a major disturbance. In any case, the Gooniyandi Aboriginal Corporation has not identified any special geological, environmental or indeed spiritual factors which might lead members of the community, including members of the Aboriginal community, to consider that the activities proposed would result in major disturbance to the land or waters. I have also taken into account the conditions on the licence requiring KGQ to rehabilitate any disturbances made to the land.
[85]Nor do I accept the proposed exploration will have a substantial effect on the ability of Gooniyandi people to access the area. The evidence of KGQ suggests the exploration will be limited in scale and conducted within a small portion of the total licence area for discrete periods of time. Given the evidence regarding the current use and enjoyment of the area by the native title holders and the size of the licence compared with the determination area as a whole, I do not accept it will have a significant effect on the community life of Gooniyandi people.
[86]For the reasons above, I find the grant of the licence and the exercise of the rights conferred is not likely to involve major disturbance to the land or waters concerned.
Should conditions be imposed?
[87]The Gooniyandi Aboriginal Corporation contends that a condition should be placed on the grant of the licence requiring KGQ to enter into a heritage protection agreement with the native title holders. The Gooniyandi Aboriginal Corporation argues that KGQ has ‘placed numerous conditions’ on the Gooniyandi Aboriginal Corporation and has not met with or made ‘further efforts to engage with’ them to resolve these issues or ‘meaningfully progress the application.’
[88]Unlike an inquiry into a future act determination application, where the Tribunal is empowered to make a determination subject to conditions, there is no express power to do so in an expedited procedure objection inquiry. In the recent matter of Hale v Western Australia, the Federal Court raised the question of whether the Tribunal could determine that, subject to conditions, a proposal attracts the expedited procedure. However, as the question was not in issue in those proceedings, the Court did not attempt to answer it.
[89]It is not necessary in the present context to offer an opinion on whether conditions may be imposed. The evidence before me does not justify a condition of the kind sought by the Gooniyandi Aboriginal Corporation. In any case, the State already intends to impose a condition requiring KGQ to enter into a regional standard heritage agreement, at the Gooniyandi Aboriginal Corporation’s request within 90 days of the grant of the licence. It will be a matter for the Gooniyandi Aboriginal Corporation whether they decide to act on the condition.
[90]Once the State asserts the expedited procedure, there is no legal or statutory duty for the proponent to negotiate with the native title holders unless and until the Tribunal determines the expedited procedure does not apply. Any negotiations that have taken place prior to or after the lodgement of the objection may be relevant to the inquiry, to the extent they illustrate the proponent’s intentions and the likelihood of future consultation (see WF v Echo Resources at [39]). However, in an expedited procedure inquiry, there is no requirement for the proponent to have negotiated in good faith with the native title holders.
[91]In this case, the failure to reach agreement appears to come down to questions of how the negotiations would proceed and how they would be funded. Correspondence provided in the inquiry indicates party representatives expressed a desire to continue a long term and positive working relationship. Ultimately, parties were unable to reach a final agreement prior to this decision being handed down. This by no means suggests that consultation is unlikely to occur following the grant of the licence. The Gooniyandi Aboriginal Corporation and KGQ have already entered into an agreement on adjacent tenements. Alternatively, a framework for consultation is available through a regional standard heritage agreement, which will be imposed as a condition on grant of the licence, and will be available to the Gooniyandi Aboriginal Corporation should they wish to request the agreement be executed. In any case, given my findings in this matter, it is unnecessary to have regard to the conduct of KGQ, the Gooniyandi Aboriginal Corporation or their representatives during negotiations about the licence.
Can a costs order be made?
[92]In its letter to the Tribunal, KGQ states that it:
seeks an outcome ... whereby parties are only liable for their own costs up to and until the requirements of the proposed listing hearing of the 10th of September. If the current listing hearing on the 10th of September and or the subsequent hearing (as currently proposed on the 24th of September) are required, the Grantee Party wishes to have all its costs awarded against Indienergy [sic] for these hearings, in the event of a ruling in favour of the Grantee Party.
[93]There is no express provision empowering the Tribunal to award costs in an expedited procedure inquiry. The only reference to costs in the Native Title Act is in s 85A, which provides that, in proceedings before the Federal Court, each party must bear its own costs, although the Court may order one party to pay some or all of the costs incurred by another as a result of any unreasonable act or omission by the first-mentioned party.
[94]The principles in s 85A apply, at least in spirit, to an appeal from a decision of the Tribunal under s 169 (see Cheedy v Western Australia at [9], [12]-[16], [43]). However, the section only applies to proceedings before the Federal Court (see s 80 of the Native Title Act). The extent of the Tribunal’s powers in relation to costs, insofar as they can be described in those terms, is outlined in reg 9(c) of the Native Title (Tribunal) Regulations 1993 (Cth). This provides that a person is entitled to a refund of the prescribed application fee if the Tribunal certifies that proceedings were terminated in a manner favourable to the applicant. That regulation clearly has no application in the present case.
[95]In the absence of any specific legislative provision regarding costs, I have no power to make the order sought by KGQ.
Conclusion
[96]For the reasons above, I find the evidence does not support the conclusion that the grant of the licence is likely to interfere with the carrying on of the native title holders’ community or social activities or with areas or sites of particular significance to them in accordance with their traditions. I also find the licence is not likely to involve major disturbance to the land and waters concerned.
Determination
[97]The determination of the Tribunal is that the act, namely the grant of exploration licence 04/2356 to Kimberley Granite Quarries Pty Ltd, is an act attracting the expedited procedure.
Ms H Shurven
Member8 January 2016
APPENDIX 1: CONDITIONS AND ENDORSEMENTS ON GRANT OF LICENCE
Conditions
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
Endorsements
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The Licensee [sic] attention is drawn to the provisions of the:
·Water Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway; and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water areas (Fitzroy River and Tributaries) the following endorsements apply:
8.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
9.All activities to be undertaken with minimal disturbance to riparian vegetation.
10.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
12.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
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