Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Atlas Iron Ltd/Carlinga Mining Pty Ltd
[2012] NNTTA 139
•18 December 2012
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Atlas Iron Ltd/Carlinga Mining Pty Ltd, [2012] NNTTA 139 (18 December 2012)
Application Nos: WO2010/0797, 0808, 0809, 0810 & 1125 & WO2011/0193, 0478
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Ike Simpson & Ors on behalf of Wajarri Yamatji – (WC04/10) (native title party)
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The State of Western Australia (Government party)
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Atlas Iron Ltd (grantee party)
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Carlinga Mining Pty Ltd (grantee party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 18 December 2012
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance– expedited procedure attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 32, 35, 36, 109, 146, 151, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 111
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases: Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representative of the Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
native title party: Mr Marcus Fort, Yamatji Marlpa Aboriginal Corporation
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Ms Melissa Watts, Hunt & Humphry
grantee party:
REASONS FOR DETERMINATION
The Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant the following exploration licences (‘the proposed licences’) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
| Date of Notice | Tenement | Grantee Party |
| 24 February 2010 | E09/1670 | Atlas Iron Ltd |
| 24 February 2010 | E51/1360 | Atlas Iron Ltd |
| 24 February 2010 | E51/1361 | Atlas Iron Ltd |
| 24 February 2010 | E51/1362 | Atlas Iron Ltd |
| 21 April 2010 | E20/735 | Atlas Iron Ltd |
| 15 December 2010 | E59/1701 | Carlinga Mining Pty Ltd |
On 21 December 2010 Atlas Iron Ltd (‘the grantee party’) commenced an off-market takeover bid for all the shares in Giralia Resources NL. The offer closed on 28 February 2011, by which time the grantee party had acquired 97.09% of the shares in Giralia Resources NL. On 1 March 2011 the grantee party proceeded to compulsorily acquire the remaining shares in Giralia Resources NL, becoming its sole shareholder. Carlinga Mining Pty Ltd is a wholly-owned subsidiary of Giralia Resources NL, which meant that upon the grantee party’s acquisition of all the shares in Giralia Resources NL the grantee party gained full control and ownership of Carlinga Mining Pty Ltd’s tenement applications. Therefore, in this determination I shall refer to the grantee party as meaning Atlas Iron Ltd, as Atlas Iron Ltd has control of Carlinga Mining Pty Ltd’s application for the grant of E59/1701.
The proposed licences’ sizes and locations are as follows:
| Tenement | Shire | Size (km2) | Location | Claim Group | Overlap (%) |
| E09/1670 | Meekatharra/ Murchison | 342.34 | 165km NW of Meekatharra | Wajarri Yamatji | 100 |
| E51/1360 | Meekatharra | 27.94 | 107km NW of Meekatharra | Wajarri Yamatji | 100 |
| E51/1361 | Meekatharra | 15.42 | 99km NW of Meekatharra | Wajarri Yamatji | 100 |
| E51/1362 | Meekatharra | 9.25 | 98km NW of Meekatharra | Wajarri Yamatji | 100 |
| E20/735 | Cue | 36.58 | 34km NW of Cue | Wajarri Yamatji | 100 |
| E59/1701 | Murchison | 84.78 | 77km NW of Yalgoo | Wajarri Yamatji | 100 |
Expedited procedure objection applications were lodged with the Tribunal by Ike Simpson and others on behalf of Wajarri Yamatji native title claim group (‘the native title party’) in relation to the proposed licences on the following dates:
E09/1670, E51/1360, 1361 and 1362 on 22 June 2010;
E20/735 on 17 August 2010; and
E59/1701 on 12 April 2011.
E59/1701 is also wholly overlapped by the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996). No expedited procedure objection application has been lodged by the Mullewa Wadjari Community.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions set on 5 July 2010 for WO10/797, 808, 809 and 810 allowed for State compliance up to and including 11 October 2010, with other parties’ compliance to follow.
Directions set on 30 August 2010 for WO10/1125 allowed for State compliance up to and including 13 December 2010, with other parties’ compliance to follow.
Directions set on 9 May 2011 for WO11/478 allowed for State compliance up to and including 8 August 2011, with other parties’ compliance to follow.
The native title party and the grantee party actively attempted to negotiate a heritage protection agreement in relation to E09/1670, E51/1360, 1361 and 1362 over an extended period of time. On 15 September 2010 the parties advised the Tribunal that they were close to signing the heritage protection agreement, and in order to assist parties to finalise their negotiations the Tribunal vacated directions in relation to WO10/797, 808, 809 and 810.
At an adjourned Status Conference on 1 December 2010, the native title party and the grantee party advised that they were also negotiating a heritage protection agreement in relation to E20/735 and needed additional time to finalise the agreement. On 4 December 2010 the Tribunal amended its directions in WO10/1125 to extend compliance dates by six weeks, requiring the State to comply by 24 January 2011 with other parties to follow.
At an adjourned Status Conference on 23 February 2011, WO10/1125 began to be heard along with WO10/797, 808, 809 and 810 as the parties were negotiating a heritage protection agreement over the tenements associated with those objections as a cohesive group. In order to streamline the conduct of the objection applications, the Tribunal vacated the compliance dates in WO10/1125 to align that objection’s management with WO10/797, 808, 809 and 810.
At the request of parties, the Tribunal amended its directions to extend compliance dates in WO11/478 on 9 August 2011 as the takeover of Carlinga Mining Pty Ltd’s parent company, Giralia Resources NL, by the grantee party was inhibiting further progress of their negotiations to finalise a heritage protection agreement in relation to E59/1701. The State’s compliance date was extended to 19 September 2011.
The Department of Mines and Petroleum (DMP) provided the State’s evidence on 25 August 2011 and the State Solicitor’s Office provided the State’s contentions on 2 September 2011 in WO11/478.
At the adjourned Status Conference on 21 September 2011 for WO11/478, the native title party and grantee party requested that the Tribunal vary its directions to enable them to further their negotiations towards a finalised heritage protection agreement. On 26 September 2011 the Tribunal extended the compliance dates of the grantee party and the native title party by a further four weeks, with the native title party due to provide its contentions and evidence by 24 October 2011.
The native title party did not comply with its direction date of 24 October 2011.
All the objection applications were heard together at a Listing Hearing on 17 November 2011. The parties informed the Tribunal that they were still negotiating heritage protection agreements in relation to the proposed licences and were hopeful of reaching finalised agreements. The native title party and the grantee party requested the Tribunal vary its directions in WO11/478 by extending compliance dates for them by eight weeks. The State requested that if the Tribunal did grant the request for extended compliance dates that a springing order be imposed that would automatically dismiss the native title party’s objection applications should they fail to comply with the directions of the Tribunal. On 22 November 2011 the Tribunal granted the native title party and grantee party’s request for extended compliance dates, but also imposed a springing order on the native title party. The Tribunal also reinstated the directions in relation to WO10/797, 808, 809, 810 and 1125, imposing the same springing order on the native title party in those objection applications. The extended compliance dates provided that the native title party was required to lodge its contentions and any evidence by 19 December 2011 and the grantee party was to lodge its contentions and any evidence by 9 January 2012.
The objection applications were reverted to the Status Conference list and at the hearing on 7 December 2011, the native title party and the grantee party again requested a further extension to compliance dates of six weeks to finalise the heritage protection agreements due to delays in their negotiations. The State opposed any further extensions due to the age of the matters. The Tribunal, in the belief that finalisation of the heritage protection agreements was close, again extended compliance dates (including the springing order imposed on the native title party) so that the native title party was to provide its contentions and any evidence by 6 February 2011 with the grantee party to follow on 13 February 2011.
At a Status Conference on 11 January 2012 the native title party again requested an extension of compliance dates by which the native title party would provide its contentions and any evidence by 27 February 2012, with the grantee party to follow on 6 March 2012. The request was made on the basis of the native title party still hoping to finalise heritage protection agreements with the grantee party. The grantee party did not oppose the request, but the State did oppose it. On 17 January 2012 the Tribunal refused the native title party’s request and the compliance dates remained unchanged with the springing order imposed on the native title party remaining in place.
The native title party provided its contentions but no evidence to the Tribunal on 6 February 2012.
At the Listing Hearing on 29 March 2012 the native title party and the grantee party advised that agreements in principle had been reached in relation to all the tenements except E20/735 (but that agreement in relation to this tenement was close) and requested that directions in relation to all the objection applications be vacated. The grantee party and the State agreed with the native title party’s request. The Tribunal granted the native title party’s request at the Listing Hearing and referred the objection applications back into the Status Conference lists.
However after several Status Conferences, by the Status Conference on 12 September 2012 it became apparent that the parties had not been able to finalise the drafts of the heritage protection agreements in relation to the proposed licences. Directions were reinstated, and the objection applications were adjourned to a further Listing Hearing on 11 October 2012. Parties were advised that any further submissions in relation to the objection applications would be accepted up until that date.
The grantee party provided its detailed contentions to the Tribunal on 2 October 2012.
On 10 October 2012 by email the native title party requested that additional time be provided to the parties to conclude their negotiations. However, in a responsive email on the same date the grantee party did not support the native title party’s request for additional time.
Also by email on 10 October 2012, the State advised that due to the length of time that had elapsed since it lodged its Contentions with the Tribunal, it required additional time to consider whether it was appropriate to lodge Contentions in Reply to the native title party’s Contentions.
At the Listing Hearing on 11 October 2012 the native title party indicated that it may need to lodge further material with the Tribunal in relation to the objection applications. The State also advised that it wished to lodge Contentions in Reply.
On 18 October 2012, I was appointed by the President of the Tribunal as the Member to conduct the inquiry in this matter. I also made directions that the State was to lodge any Contentions in Response by 2 November 2012 and that the native title party and the grantee party were to lodge any Contentions in Reply to the State by 16 November 2012.
The State provided the Tribunal with its Contentions in Reply on 29 October 2012.
On 19 November 2012 the grantee party confirmed by email that it did not intend to lodge any further contentions.
On 23 November 2012 the native title party representative advised by email that it did not have instructions to lodge any further contentions or any evidence.
The inquiry proceeded to be determined ‘on the papers’ as per s 151 of the Act, and I am satisfied that it can be adequately determined in this way.
I feel compelled to note that the procedural history of these matters is a cause for considerable concern. While the Act enshrines an ethos of agreement making over litigated or arbitrated outcomes, the expedited procedure, as its name suggests, is an exception. As had been indicated in [6] above the Tribunal has built into its procedures dealing with the expedited procedure a window of opportunity to reach agreement without the necessity of the determination of the objection. That opportunity should only be extended in exceptional circumstances. The reason for that is that the expedited procedure is designed to fast track the grant of tenements the government party deems will have no significant impact on native title rights and interests. The Act provides a mechanism where the native title party may take issue with that assertion (s32 of the Act). By virtue of s109 of the Act the Tribunal is required to perform its functions in a fair, just, economical, informal and prompt way. In my opinion in allowing an expedited procedure matter to languish for this long the Tribunal is not meeting the last of those obligations. It needs to be borne in mind that the Act requires the Tribunal in relation to a s35 application where the expedited procedure was not applied, or found not to apply, to take all reasonable steps to make a determination as soon as reasonably practicable (s36(1)). In the event that a decision is not made within six months of the date of the lodgement of the application the Tribunal must advise the Commonwealth Attorney General of that fact and include advice about when the determination is likely to be made (s36(3)). There are no such time stipulations in relation to the expedited procedure but it could not be the case that the timeframe could exceed those relevant to s35 applications. In any event, the Act provides a range of mechanisms by which the parties can provide themselves with all the time they need if they agree that further, even lengthy, negotiations are desirable. The State may withdraw the statement of expedition (s32(7)), the native title party may withdraw the objection (s32(6)) (presumably on the basis of an assurance that an agreement will be negotiated before a grant of the tenement). Alternatively the grantee party may consent to the objection.
It is my view that objections to the expedited procedure must be dealt with promptly and I shall make efforts, as far as I am able, to ensure situations such as this do not recur. Those comments are not intended to be critical of Tribunal staff involved in dealing with this matter at the interlocutory stages. They work very efficiently under a great deal of pressure and on the basis of assurances provided by the parties.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340.
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).
Evidence in relation to the proposed act
The Government party has provided: a statement of contentions; tengraph plans with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement applications; copies of the proposed endorsements and conditions of grants and a tengraph quick appraisal for each tenement.
E09/1670
Government party documentation establishes the underlying land tenure of E09/1670 includes:
· CR 2048 Stopping Place for Travellers and Stock (at 0.7 per cent);
· Vacant Crown Land (at 0.3 per cent);
· A pastoral lease 3114/1104 (Mt Gould) (at 17.6 per cent);
· A pastoral lease 3114/941 (Beringarra) (at 22.8 per cent);
· A pastoral lease 3114/625 (Milly Milly) (at 58.5 per cent); and
· Road Reserve (at less than 0.1 per cent).
Documentation establishes that E09/1670 has previously been overlapped by 13 exploration licences, granted between 1994 and 2007 (with between 50.4 per cent overlap and 0.1 per cent overlap), and all now surrendered or withdrawn. There is currently one live miscellaneous licence overlapping E09/1670 by 1 per cent (L09/20).
The quick appraisal document shows that services affected are various minor watercourses and wells/bores, including Minajibby and Mukalo Creeks, and minor roads.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within E09/1670. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on E09/1670 require that:
any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6);
access to and from L09/20 be preserved and that there be no interference with the licence or any installations connected to that licence (Condition 7);
there be no interference with a geodetic survey station or Robinson Range 21, and mining in that area be restricted (Condition 8); and
prior written consent of the Minister be obtained prior to any exploration work on the Stopping Place for Travellers and Stock Reserve 2048 (Condition 9).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
E51/1360
Government party documentation establishes the underlying land tenure of E51/1360 includes:
· CR 18339 Stock Route (at 25.1 per cent);
· A pastoral lease 3114/494 (Yarlarweelor) (at 74.3 per cent); and
· A pastoral lease 3114/1134 (Mt Padbury) (at 0.6 per cent).
Documentation establishes that E51/1360 has previously been overlapped by 9 exploration licences, granted between 1991 and 2000 (with between 98.1 per cent overlap and 0.9 per cent overlap), and all now surrendered, forfeited or withdrawn. There are no live tenements which overlap E51/1360.
The quick appraisal document shows that services affected are a major and minor watercourse, a track and a fence line.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within E51/1360. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on E51/1360 require that:
any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6); and
no exploration activities be carried out on Stock Route Reserve 18339 which restrict the use of the reserve Condition 7).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
E51/1361
Government party documentation establishes the underlying land tenure of E51/1361 to be as follows:
· An indigenous owned lease 3114/998 (Buttah) (at 60 per cent);
· A historical lease 394/555 (at 60 per cent); and
· A pastoral lease 3114/1134 (Mt Padbury) (at 40 per cent).
Documentation establishes that E51/1361 has previously been overlapped by 4 exploration licences, granted between 1991 and 2000 (with between 98.3 per cent overlap and 22.4 per cent overlap), and all now surrendered, forfeited or withdrawn. There are no live tenements which overlap E51/1361.
The quick appraisal document shows that services affected are a minor watercourse, a track and a fence line.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within E51/1361. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on E51/1360 require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
E51/1362
Government party documentation establishes the underlying land tenure of E51/1362 includes:
· An indigenous owned lease 3114/998 (Buttah) (at 2.1 per cent);
· A historical lease 394/555 (at 2.1 per cent); and
· A pastoral lease 3114/494 (Yarlarweelor) (at 26.9 per cent);
· A pastoral lease 3114/433 (Moorarie) (at 70.5 per cent); and
· A road reserve (at less than 0.1 per cent).
Documentation establishes that E51/1362 has previously been overlapped by 4 exploration licences, granted between 1991 and 2000 (with between 100 per cent overlap and 54.8 per cent overlap), and all now surrendered, forfeited or withdrawn. There are no live tenements which overlap E51/1362.
The quick appraisal document shows that services affected are two minor watercourses, a yard, a track and a fence line.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within E51/1362. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on E51/1362 require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
E20/735
Government party documentation establishes the underlying land tenure of E20/735 includes:
· A pastoral lease 3114/776 (Coodardy) (at 99.1 per cent);
· A road reserve (Beringarra Cue Road) (at less than 0.1 per cent);
· A road reserve (No. 457) (at less than 0.1 per cent); and
· A road reserve (Afghan Rock Coogard) (at less than 0.1 per cent).
Documentation establishes that E20/735 has previously been overlapped by 10 exploration licences, granted between 1987 and 2003 (with between 95.7 per cent overlap and 0.6 per cent overlap), and all now surrendered, forfeited or withdrawn. There are currently four mining leases and one prospecting licence overlapping E20/735 by between 0.7 and 3.8 per cent.
The quick appraisal document shows that services affected are various minor watercourses and wells/bores, including Berringarra Creek, 7 Mile Well and Afghan Rock Well, a track, a fence line, a yard, Afghan Rock and a minor road.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within E20/735, and one ‘other heritage place’ namely Afghan Rock (ID 21176 – artefacts/scatter, open access, no restrictions). Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on E20/735 require that:
any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6); and
there be no interference with a geodetic survey station, and mining in that area be restricted (Condition 7).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations;
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained; and
The licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
E59/1701
Government party documentation establishes the underlying land tenure of 59/1701 includes:
· Rabbit Proof Fence No 3 Reserve 48494 (at 0.1 per cent);
· A pastoral lease 3114/1161 (Yuin) (at 99 per cent);
· Private land CG 00861 (at 0.2 per cent);
· Private land CG 01695 (0.5 per cent);
· A road reserve (Woolgorong Road) (at less than 0.1 per cent);
· A road reserve (Woolgorong Road) (at less than 0.1 per cent);
· A road reserve (Beringarra Pindar Road) (at less than 0.1 per cent); and
· A road reserve (No. 399) (at less than 0.1 per cent).
Documentation establishes that E59/1701 has previously been overlapped by 13 exploration licences and five mining leases, granted between 1986 and 2009 (with between 100 per cent overlap and 0.3 per cent overlap), and all now surrendered or withdrawn. There are currently three mining leases, one exploration licence and eight prospecting licences overlapping E59/1701 by between less than 0.1 and 6.6 per cent, all held by the grantee party.
The quick appraisal document shows that services affected are various minor watercourses, a well/bore and springs/soaks/rockholes/waterholes, including Gneedung Pool, a major watercourse (the Greenough River), a track, a fence line, two yards, an aircraft landing ground and minor roads.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are is one DIA recorded sites within E59/1701, namely the Greenough River (ID 24761 – mythological, open access, no restrictions), and no ‘other heritage places’ recorded. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on E59/1701 require that:
any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6);
prior written consent of the Minister be obtained before commencing any exploration activities on the Rabbit Proof Fence No. 3 Reserve (Condition 7); and
there be no interference with the use of the Aerial Landing Ground and mining thereon be confined to below a depth of 15 metres from the natural surface (Condition 8).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations;
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained; and
The grant of the licence does not include any private land referred to in s29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land.
Native title party contentions and evidence
The native title party provided submissions in this matter on 6 February 2012. These submissions do not address or provide specific information regarding the social or community activities of the native title party on the proposed licences, nor was much information provided about sites of particular significance on the proposed licences or relating to disturbance to land and waters in the areas of the proposed licences. The submissions were of little assistance to the Tribunal in relation to this objection inquiry.
The only reference to a specific site of significance in the submissions was mentioned at para 18, which referred to the Lake Moore area. The paragraph said:
“Without proper Aboriginal heritage site avoidance procedures being taken, it is likely that any activity permitted pursuant to the granting of the future act will impact negatively on the sires of particular significance within the Tenement, as well as the area of Lake Moore in general. Consultation and discussion between the Objectors and the Grantee Party is necessary to ensure that the sites are not likely to be interfered with.”
Lake Moore is not within the vicinity of any of the proposed licences, so this lone specific reference to a site of significance is of no assistance.
The submissions did not address the effect of s 237(c) on the proposed licences.
Grantee party evidence
The grantee party submitted contentions on 2 October 2012.
The grantee party states:
·if the proposed licences are granted they will not gain exclusive possession to the areas of the proposed licences, and that intensive exploration activity would be temporary in nature and not occur over the whole licences at the same time (at 11);
·it has conducted searches of the DIA Register of Aboriginal Sites and has discovered only one registered site (Greenough River within E59/1701), which it will avoid or it will seek and obtain the necessary approvals if it cannot be avoided (at 19);
·it has conducted searches of the DIA Register of Aboriginal Sites and has discovered only one “other heritage place” (Afghan Rock within E20/735), which it will avoid or it will seek and obtain the necessary approvals if it cannot be avoided (at 20);
·it is aware of ‘the protection given to Aboriginal sites, whether registered or not, under the Aboriginal Heritage Act 1997 (WA)’ (sic) and ‘will act lawfully and in accordance with the AHA’ (at 24);
·it is willing to enter into a regional standard heritage agreement with the native title party if requested to do so by the native title party (at 26);
·it will comply with the State’s regulatory regime governing exploration activities and the conditions imposed on the proposed licences, including requirements for rehabilitation of the land (at 30), and
·it is continuing to negotiate a heritage protection agreement with the native title party regarding the proposed licences (at 32).
I assume that where the grantee party refers to the “Aboriginal Heritage Act 1997 (WA)” at para 24 of its submissions, this is a typographical error and the grantee party actually means the Aboriginal Heritage Act 1972 (WA).
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia and Another (2001) 108 FCR 442 (‘Smith’) at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
In this matter, the native title party has provided no information or evidence about community and social activities conducted on the proposed licences.
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]). This is also such a matter.
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 at [29]-[30], Member Sosso (whose findings I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The total area of the claim is approximately 100,510.2338 square kilometres, and the proposed licence areas take up approximately 0.51 per cent of that area. With strong evidence of the social and community activities, if any, which occur in the area, it may be possible that the Tribunal could conclude exploration activity will interfere with those community or social activities given the size and number of the proposed licences. However, in the absence of any such specific and targeted contentions or evidence in support, the Tribunal does not draw that conclusion on this occasion. In addition, the grantee party has provided some detail in relation to its intentions (as outlined at [87] above), and I am confident that, based on this evidence, the grantee party will comply with the regulatory regime.
Without strong and specific evidence from the native title party as to the nature and extent of the community and social activities of the claim group on the proposed licences, I am unable to conclude the grant of the proposed licences will interfere with social and community activities of the native title party on the proposed licences.
In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there is one Registered Site within E59/1701 and an “other heritage place” within E20/735. There are no Registered Sites or “other heritage places” within the overlap between the claim and any of the other proposed licences. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the areas of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The native title party has provided no information in relation to sites of significance, or sites of particular significance, which may exist on the areas of the proposed licences, and no evidence has been provided to support the claims made within the native title party’s submissions.
Only one reference is made to a site of significance (Lake Moore at para 18 of the native title party’s contentions), and that site is neither within any of the proposed licences nor within their vicinity.
In response, the grantee party confirms (at paras 24 and 30 of its submissions) that it intends to comply with the Aboriginal Heritage Act 1972 and the regulatory regime of the State.
The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at [43]). I accept the native title party’s general contentions that there may be sites of significance to the native title party existing within the proposed licences. However, there is no evidence before me to disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of interference.
Tribunal mapping, provided to parties on 18 December 2012, shows one DIA registered site on E59/1701 (site 24761) and no sites on the other proposed licences. There is one “other heritage place” registered within E20/735 (site 21176). There are a cluster of registered sites surrounding the boundaries of E20/735 within a radius of 5 – 10 kilometres, and a great many registered sites within a 60 kilometres radius of this licence. The landscape surrounding the proposed licences is dotted with various registered sites. None of these sites are referred to in the native title party contentions.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In this matter, I am satisfied that the AHA and its associated processes, the endorsements and conditions to be placed on the proposed tenement are likely to prevent interference with any area or site of particular significance.
Further, the grantee party has stated that it is aware of its responsibilities under the AHA and will act lawfully in accordance with it. It has undertaken a search of the DIA Register of sites and is aware of the Greenough River registered site and the Afghan Rock “other heritage place”. It has stated that it will avoid these sites, or if that is not possible it will obtain the necessary approvals. The grantee party is also continuing to negotiate a heritage protection agreement with the native title party and is willing to enter into a regional standard heritage agreement with the native title party upon request. These factors satisfy me that the grantee party is cognisant of heritage protection issues regarding the proposed licences and will continue to engage with the native title party to try to prevent interference with any area or site of particular significance.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licences.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party does not appear to have made any submissions or provided any evidence in regard to the effect of the grant of the proposed licences on s237(c). I also note the endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA).
There is no firm evidence of any sensitive topographical, geological or environmental factors on the proposed licences which would lead people to think that the grantee’s exploration activities would result in major disturbance to land or waters; and there is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
Taking into account all of these considerations, I do not find that major disturbance to land and waters is likely to occur as a result of the grant of the proposed licences.
Determination
The determination of the Tribunal is that the acts, namely the grant of exploration licences E09/1670, E51/1360, E51/1361, E51/1362 and E20/735 to Atlas Iron Ltd and the grant of exploration licence E59/1701 to Carlinga Mining Pty Ltd, are acts attracting the expedited procedure.
Daniel O’Dea
Member
18 December 2012
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