Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Tungsten West Nl
[2013] NNTTA 170
•5 December 2013
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of Wajarri Yamatji/Western Australia/Tungsten West NL [2013] NNTTA 170 (5 December 2013)
Application No: WO2012/1183
IN THE MATTER of the Native Title Act 1993 (Cth)
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Ike Simpson & Ors on behalf of Wajarri Yamatji (WC2004/010)
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The State of Western Australia (Government party)
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Tungsten West NL (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 5 December 2013
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 not 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 Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Champion v Western Australia and Another [2005] 190 FLR 362; [2005] NNTTA 1 (1 February 2005), (‘Champion’)
Cyril Barnes and Ors on behalf of the Central Eastern Goldfields People/Western Australia/Copley Pty Ltd [2012] NNTTA 109, (‘Copley’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24, (‘Geotech International’)
Gabriel Hazelbane and Ors on behalf of the Warai and Angwinmil Peoples and Gabriel Hazelbane and Ors on behalf of the Wagiman, Warai and Jawoyn Peoples/Imperial Granite and Minerals Pty Ltd/Northern Territory, [2002] NNTTA 256, (‘Hazelbane’)
Harvey Murray on behalf of the Yilka native title claimants Western Australia/Drew Griffith Money [2011] NNTTA 91, (‘Harvey Murray’)
Ike Simpson & Ors on behalf of the Wajarri Yamatji/WA/Peter Andrew Wiltshire [2009] NNTTA 119, (‘Wiltshire’)
Karijarri Traditional Lands Association/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18, (‘ASJ Resources’)
Les Tullock and Others on behalf of Tarlpa /Western Australia/Allarrow Pty Ltd [2011] NNTTA 118, (‘Allarrow’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Merle Forrest and Ors on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59, (‘Aruma’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, (‘Parker 1’)
Parker v Western Australia and Others (2008) 167 FCR 340, (‘Parker 2’)
Violet Drury and others on behalf of Nanda People/Western Australia/Giralia Resources NL [2001] NNTTA 38, (‘Violet Drury’)
Robin Boddington & Ors (Wajarri)/WA/Bacome Pty Ltd [2003] NNTTA 62, (‘Bacome’)
Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd, [2002] NNTTA 236, (‘Boddington’)
Wajarri Yamatji/Western Australia/Alchemy Resources (Murchison) Pty Ltd [2010] NNTTA 151, ('Alchemy')
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 150, (‘Braeburn Resources’)
Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172, (‘Weld Range Metals’)
Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30, (‘Asia Investment Corporation’)
Representative of the Mr Marcus Fort, Yamatji Marlpa Aboriginal Corporation
native title party:
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Matthew Smith, Department of Mines and Petroleum
Representatives of the Mr Steve Millward, Tungsten West NL
grantee party:
REASONS FOR DETERMINATION
On 11 July 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E20/812 (‘the proposed licence’) to Tungsten West NL (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.
The proposed licence is approximately 29 graticular blocks in size (which equates to approximately 81.2 square kilometres), and is located 39 kilometres north west of Cue in the Cue Shire. The proposed licence entirely overlaps the registered native title claim of the Wajarri Yamatji people (WC2004/010 – registered from 5 December 2005). No other native title claims or determination areas overlap the proposed licence.
On 9 November 2012, Ike Simpson & Others on behalf of Wajarri Yamatji (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.
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 allowed 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.
A number of conferences were convened between December 2012 and May 2013 at which parties reported that a draft agreement was being considered; it was also raised that the grantee party was considering excising part of the proposed licence. At an adjourned status conference held on 29 May 2013, it became apparent that the matter was still not close to being resolved by agreement and the grantee party requested that it be set down for inquiry.
Final directions for inquiry were made on 18 June 2013.
The inquiry
The Directions for the inquiry required, among other things, that:
·the native title party provide by 19 August 2013:
oa statement of contentions, including
§a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
§a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement;
oa copy of each document relevant to the inquiry (including any affidavit to be relied on);
oa statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposed that the evidence be heard if the matter is not to be heard on the papers;
·the grantee party provide by 26 August 2013:
oa statement of contentions;
oa copy of each document relevant to the inquiry; and
oa statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers; and
·the Government party provide a statement of contentions in reply by 2 September 2013.
On 13 August 2013, the Government party provided its supporting documents relating to the proposed licence, from the Department of Mines and Petroleum (DMP). The native title party provided a statement of contentions and supporting documents, including affidavit material (as outlined at [29] below) on 19 August 2013. The Government party provided its contentions and further supporting documents on 2 September 2013. The grantee party did not provide any contentions or documents, nor did it state whether or not it wished to rely on the submissions of the Government party. The only material related to the grantee party and their intentions was annexed to the Government party contentions in the form of a statutory declaration of the grantee party representative, dated 6 June 2012, to the effect that the grantee party had offered to enter into a Regional Standard Heritage Agreement (RSHA) with the native title party by sending an executed copy to the Yamatji Marlpa Aboriginal Corporation (the native title party representative).
On 5 September 2013, the native title party representative requested leave to file further evidence and submissions prior to the listing hearing, scheduled for 19 September 2013. The Government party did not oppose the native title party’s request, but sought leave to reserve the right to respond to any new evidence or information filed by the native title party. No objection or comment was received from the grantee party. The Tribunal approved the native title party’s request on 10 September 2013, and the following further directions were made:
That the native title party may provide further submissions and evidence, strictly in response to new matters raised in the Government party’s submissions, on or before 23 September 2013;
That the Government party and grantee party may make further submissions in reply to any new evidence or information filed by the native title party, on or before 10 October 2013.
On 23 September 2013, the native title party provided contentions in reply, a number of Department of Aboriginal Affair's (DAA) site files, and an unsigned witness statement of Mr Lance Mongoo. No further submissions were received from the Government or grantee parties.
The signed witness statement of Mr Lance Mongoo was provided by the native title party to the Tribunal on 15 October 2013. It was identical to the unsigned statement received on 23 September 2013, and no party objected to this signed document. As such, I accept it as part of the materials to be considered for this inquiry.
On 28 October 2013 I was appointed as the Member to conduct the inquiry.
On 5 November 2013, the Tribunal sent all parties a copy of a map dated 29 October 2013, created by the Tribunal’s Geospatial Services, and indicated that it would be relied upon for the determination of this matter. No party raised any objection to the Tribunal relying on the map. The communication to parties of 5 November 2013 also noted that all parties should have submitted all contentions and supporting documents for the inquiry, and that if any party had any concerns about the inquiry proceeding on the papers based on the contentions and documents currently before the Tribunal, to make these known by close of business on 8 November 2013. No such concerns were raised.
Section 151(2) of the Act provides that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and material provided by the parties, and noted that they have agreed to the matter being determined on the papers. I am satisfied that this matter can be determined in this way.
Legal principles
Section 237 of the Act provides:
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, 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 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 at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2).
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, in particular [588]-[589]).
Evidence in relation to the proposed act
The Government party has provided: a statement of contentions; a tengraph plan; extracts from the DAA’s Aboriginal Heritage Inquiry System Aboriginal Sites Database; a copy of the tenement application; a copy of the Draft Tenement Endorsement and Conditions Extract and a tengraph quick appraisal for the proposed licence.
The quick appraisal provided by the Government party establishes the underlying land tenure of the proposed tenement to be Pastoral Lease 3114/776 (Coodardy) at 99.5 per cent, as well as five road reserves at less than 0.1 per cent.
The quick appraisal also shows that a number of dead tenements overlap the proposed licence:
Two exploration licences, granted in 1983 and 1995, one having been surrendered in 1984 and the other forfeited in 1998, overlapping the proposed licence by 13.3 per cent and 1.4 per cent respectively.
Six mineral claims, two of which were granted in 1937 and surrendered in 1938 and four of which were granted in 1981 and cancelled in 1982, overlapping the proposed licence by a maximum of 1.4 per cent each.
I do note the Government party contentions refer to eleven exploration licences previously existing on the proposed licence, however, only 2 of these were actually granted.
Services located on the proposed licence include four minor roads, three tracks, three yards and 60 non-perennial minor watercourses.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DAA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there is one registered site, called Muir’s Site 07, located on the proposed licence (site ID10776, open access, no gender restrictions, painting.) The extract also shows that there are four ‘other heritage places’ recorded by the DAA, located on the proposed licence:
· Telegootherra Quarry: site ID 21213, open access, no gender restrictions, quarry, artefacts/scatter;
· Telegootha Spring: site ID 21214, open access, no gender restrictions, water source;
· Telegootha Soak: site ID 21215, open access, no gender restrictions, water source; and
· Telegootha North – TN 1 & 2: site ID 21216, open access, no gender restrictions, painting, artefacts/scatter, rock shelter [other: 3 stencils].
The Tribunal map shows there are a further two sites located within a 2-3 kilometre radius of the proposed licence (site ID 10783 and site ID 21179) and many more sites in the wider area, especially in an area about 25-30 kilometres north east of the proposed licence, near Wilgie Mia, where there are over 100 sites.
There do not appear to be any Aboriginal communities located on or in the vicinity of the proposed licence.
The 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]). The proposed licence will also be subject to the following three further conditions:
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.
7. No interference with Geodetic Survey Station Telegootherra and Cue 7 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any 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’s 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 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 Ground Water Areas the following endorsement applies:
8. 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 DoW.
Native title party contentions and evidence
The native title party initially provided: statement of contentions; a copy of the decision in Weld Range Metals; a copy of the decision in Boddington; the affidavit of Mr Colin Hamlett, affirmed 28 June 2013; the affidavit of Mr Colin Hamlett sworn 28 August 2002 (provided in the Boddington matter). In reply to the Government party’s submissions the native title party has provided the signed witness statement of Mr Lance Mongoo, dated ‘9 April 200 [sic]’; an affidavit of Mr Lance Mongoo sworn 27 August 2002 (provided in the Boddington matter); an affidavit of Mr Lance Mongoo sworn 14 December 2001 (also provided in the Boddington matter) and copies of ‘Capture Operator Notes’ relating to the Telegootherra ‘other heritage places’ located on the proposed licence.
The signed statement of Mr Mongoo dated '9 April 200 [sic]' is problematic. The native title party representative sent it on 15 October 2013, as the signed version of the unsigned statement provided on 23 September 2013. If I assume it was signed some time between 23 September and 15 October, it is difficult to see how the signature date could be April. No explanation has been provided for the incomplete date in relation to the signed statement. While the Tribunal is tasked with operating informally and is not bound by the rules of evidence, I am not prepared to go as far as to accept the signed statement dated '9 April 200 [sic]', and as such, have not considered this statement for the purposes of this matter.
Although the Government party has made submissions about the weight that should be given to the affidavit evidence provided by the native title party to the Tribunal, which I will deal with in more detail later, the evidence of Mr Colin Hamlett and the remaining evidence of Mr Lance Mongoo is uncontested and I accept it. Both Mr Hamlett and Mr Mongoo state they are members of the Wajarri Yamatji claim group and have authority to speak for the country where the proposed licence is located. I accept Mr Hamlett and Mr Mongoo have authority to speak on behalf of the native title party.
The native title party submits that in accordance with carrying out its functions in a fair, just economical, informal and prompt way, the Tribunal is open to rely on its previous determination or adopt findings from it where it considers it appropriate to do so (ss 109(1) and 146(b) of the Act). The native title party submits the Tribunal should adopt into evidence the whole of the determinations made in the Weld Range Metals and Boddington matters and the materials referred to in those decisions to the extent it sees fit. The native title party notes that part of the Boddington decision was adopted in Weld Range Metals and asks that it be adopted in this matter also, because part of the proposed licence overlaps the tenement the subject of Boddington and because the proposed licence in this matter is over four times the size of the Boddington tenement. The native title party submits that both the Boddington tenement and the proposed licence in this matter are located in an area between a site called Wilgie Mia (an ochre mine), and a site called Walga rock. This is an area said to be connected to dreaming stories and where the old people frequented more often than other areas. The native title party acknowledges that in normal circumstances, where the facts are peculiarly within the knowledge of a party, it is that party’s responsibility to produce evidence as to those facts, but submits that principle should not apply in this matter because the native title party has previously produced evidence as to the significance of the Weld Range and the area near or on the proposed licence, and it cannot be expected to produce the same evidence repeatedly in circumstances where the Government party does not take the Tribunal’s finding into account when asserting the expedited procedure. They also contend there is an abundance of documentary evidence submitted in other matters. I deal with this issue in the paragraphs below.
The native title party submits that it should not be prejudiced by the fact that members of the native title party did not physically travel to the proposed licence because the native title party cannot reasonably be expected to fund a trip to every proposed licence in order to provide evidence, especially when the Government party asserts the expedited procedure applies in every case. I might point out here that in relation to the Tribunal's arbitral process, there is no requirement for parties to travel out to the relevant proposed licence to collect evidence. What is required is evidence that is within a party’s knowledge, which supports their contentions. This does not necessarily require a site visit for each expedited procedure objection matter.
As an annexure to its contentions, the native title party provided a series of maps. One shows the location of the ‘pink box area’ discussed in Weld Range Metals, in relation to the proposed licence. Another shows the location of the Boddington tenement (immediately south of the proposed licence), the location of Wilgie Mia Aboriginal Reserve and Walga Rock and that of the proposed licence in this matter. A third map shows the location of various other proposed licences that have been the subject of Tribunal inquiries and the outcomes of those inquiries, in relation to the location of the proposed licence in this matter.
The Government party contends the Tribunal should reject the native title party’s approach of relying on previous determinations. It contends the Tribunal should find the affidavit of Mr Hamlett is of little assistance because it is vague and general in nature and is not specific as to the location or significance of any areas or sites of significance to the native title party within the proposed licence. It also contends that the Weld Range Metals decision should not be relied on because it was an application brought pursuant to ss 35 and 75 of the Act and so considered different criteria to an expedited procedure objection inquiry. I do not find this contention sustained, as while the specific sections considered in each of the arbitral processes are different, the general principles of requiring evidence to support argument remains the same. If evidence has been put forward in one matter, which may be relevant to another matter, the party seeking to adduce the evidence needs to provide the link as to why the previous evidence should be considered in the current matter. In this case, the native title party has provided that link, drawing the proposed licences into the area of significance to the native title party that was outlined in great detail in the Weld Range Metals matter.
I have chosen not to adopt the native title party’s requested approach of relying on the Boddington and Weld Range Metals determinations in their entirety as evidence. I have taken the evidence provided for the Boddington decision into account in so far as Mr Hamlett has directed me to do so in the evidence he submitted for this matter. He has submitted a signed statement talking about the area between Wilgie Mia and Walga Rock being very important for the native title party. And he has likened the kinds of sites likely to be found on the area of the proposed licence to those established to be located on the Boddington tenement. The Boddington tenement, which, I note, was never actually granted, is located immediately south of, or underneath, the proposed licence. The Tribunal map confirms the proposed licence is located between Walga Rock and Wilgie Mia, as was the Boddington tenement. For these reasons, I find that it is reasonable for me to take into account evidence submitted for the Boddington matter in so far as it provides information about the area between Walga Rock and Wilgie Mia, because it was a highway used by the ‘old people’ and is clearly intersected by the proposed licence.
In relation to the Weld Range Metals decision, both the Government party and the native title party acknowledge that the area of the Weld Range is culturally important for the native title party. That cultural importance of the Weld Range is acknowledged and outlined in many previous Tribunal decisions, including Weld Range Metals in which it was decided that four proposed mining leases could not be granted because the interests, proposals, opinions or wishes of the native title party were given greater weight than the potential economic benefit of or public interest in the mining project proceeding. Deputy President Sumner found that the Weld Range area is of such significance to the Wajarri Yamatji People in accordance with their traditions that mining on it should only be permitted with their agreement.
In addition, I have heard nothing from the grantee party in terms of their intentions, or their view of the likelihood of their activities interfering with the rights and interests of the native title party.
Considering the Evidence
Section 237(a) Community and Social Activities
The Tribunal is required to make a predictive assessment as to 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 at [23]. The notion of 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: Smith at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
The native title party has provided little information regarding the impact of the proposed licence on their social and community activities. If they intended to focus the contentions and evidence toward s 237(b), it would assist the Tribunal, and parties, if that were made clear at an early stage in the inquiry process.
The native title party have provided the previous Tribunal decisions of Boddington and Weld Range Metals, which contain evidence relevant to s 237(a), but have not directed my attention to any specific parts, or asked me to adopt that evidence for the purposes of this inquiry in relation to community and social activities, apart from those in relation to sites of particular significance, which are addressed in that section below. For that reason I am unable to find that any social or community activities carried out on the proposed licence, are likely to be interfered with by the grant of the proposed licence.
Section 237(b) Site of Particular Significance
The issue the Tribunal is required to determine in relation to s 237(b), is whether there is likely to be (in the sense of a real chance or risk of) interference to sites or areas of particular significance (that is, more than ordinary) to the native title party in accordance with their traditions. The register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows that there is one registered site and four other heritage places recorded under the AHA located on the proposed licence. 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. There may well be other areas and/or sites of particular significance on the proposed licence. The AHA protects Aboriginal sites whether they are on the register or not, provided s 5 of the AHA is applicable.
The native title party submits the proposed licence is situated within or includes areas of particular significance to the native title party and that without proper Aboriginal heritage site avoidance procedure being taken, it is likely that any activity permitted pursuant to the grant of the proposed licence will impact negatively on the sites of particular significance within the proposed licence. The native title party contends the area of the proposed licence is ‘site-rich’ and that it is located within an area of particular significance (the area between Walga Rock and Wilgie Mia) - an area which contains an increased number of sites of particular significance and, therefore, there would be a high risk of interference if the expedited procedure were to apply. As noted in previous Tribunal decisions, the term 'site rich' is not particularly helpful in determining whether sites of particular significance exist. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of the grantee party, in the area which is the subject of this proposed licence (see for example, Geotech International), or which has a nexus to this proposed licence (see for example, Silver at [34]-[35]).
As mentioned earlier in this determination, the Government party takes issue with the native title party’s approach in referring to previous decisions and previously submitted evidence to establish that the expedited procedure should not apply. The Government party notes that in Boddington, the Tribunal was not of the opinion that the area was necessarily site rich or that the whole area was of particular significance, but rather was satisfied that the proposed licence contained sites of particular significance, the precise location of which is unknown. I note the tenement subject to the Boddington decision is directly adjacent to the proposed licence in this matter.
The Government party contends that for the native title party to successfully establish that the expedited procedure should not apply by virtue of s 237(b), it ‘must adduce evidence that supports its contention that sites of particular significance exist within the proposed tenement area the subject of these proceedings’ (at 49(d)). The Government party outlines previous expedited procedure objection determinations for proposed licences located in the Weld Range area, for which the Tribunal decided that the expedited procedure did apply because the evidence was not sufficient to establish the existence of areas of sites of particular significance on the proposed licences. For example, the Government states in Bacome the expedited procedure was held not to apply. In that matter, the native title party provided evidence about the significance of the Weld Range and Wilgie Mia broadly, without adducing further specific evidence about areas or sites of particular significance on the proposed licence in that matter. Another decision referred to is Alchemy, for which, similarly the evidence provided was not sufficiently specific to establish that there were areas or sites of particular significance on the proposed licence.
I disagree with the Government party’s submission that the present matter is analogous to Bacome and Alchemy. The evidence provided in the present matter is sufficient to establish the existence of sites or areas of particular significance on the proposed licence, even if their exact location has not been identified. While the evidence in Bacome and Alchemy spoke generally about the Weld Range and Wilgie Mia, in this matter the deponent talks about the ‘highway’ between Wilgie Mia and Walga Rock, which is intercepted by the proposed licence, and the sites that exist on that highway. The deponent draws a nexus between sites likely to be found on the proposed licence, and specific sites located on the Boddington tenement, identified during a site visit, due to proposed licence being directly south of the Boddington tenement and both being located on the ‘highway’.
The Government party also quotes Wiltshire (particularly [36]-[37]), and submits that 'the approach taken in Wiltshire is the only approach open to the Tribunal in the present matter' (at 49(f)). That is, that previous findings of areas of particular significance in the land surrounding a proposed licence are insufficient on their own to establish there are sites within a proposed licence. I note that in Wiltshire the Tribunal found that the expedited procedure did not apply on the grounds of s 237(b), because the Tribunal was satisfied that areas or sites of particular significance were located on the proposed licence. I agree with the approach in Wiltshire, and have followed it in this decision. The native title party has not simply provided evidence of areas or sites of particular significance in the vicinity of the proposed licence, but has established how that evidence relates to the proposed licence.
In this matter, as for the Tribunal in Boddington, my conclusion is not based on a finding that the proposed licence is located within a site rich area, although that may well be a finding open to the Tribunal based on the evidence produced and decision made in Weld Range Metals. That was a decision based on a large amount of evidence, including an application for National Heritage Listing of the Weld Range area, which came after the determinations outlined by the Government party where the expedited procedure was found to apply, as outlined above. My conclusion is based on the evidence before me in this matter, comprising affidavit material adducing to the existence of sites on the proposed licence, even though their exact location may not be established.
Mr Hamlett, in his June 2013 affidavit, says that he knows the area of the proposed licence well and that ‘I’ve been out there recently’. He correctly identifies the proposed licence as being near Telegootha Hill (in fact the Tribunal mapping shows Telegootha Hill to be located on the south east border of the proposed licence), and says, ‘All of that area of the tenement is significant, and there’s sites all through there’. He says the proposed licence is located between Wilgie Mia and Walga Rock and that the area between those two sites is important - that it’s a highway the old people used and there is a law ground in between the sites. He says the highway is ‘where the old people used to come up and down’, there’s camping grounds and soaks and creeks.’ He says that as the proposed licence is ‘right in the middle’ it would have been ‘frequented more than other areas around there’. Mr Hamlett says that the highway between Wilgie Mia and Walga Rock was used for preparations for initiations and meetings, and that it was an important area for camping, hunting and gathering food. He says there are lots of 'granites' in the area and that ‘you’ll still find lots of cave paintings and stuff in those granites’. He says the whole of the area is significant. Mr Hamlett states ‘There are a few sites within the tenement that are on the DIA [now DAA] register like a few sites listed as Telegootha, but there are other sites as well. If you go and do a survey there you’ll find plenty more sites’.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker [31]-[38] and [40]-[41]). While the Tribunal has usually found the site protective regime based on the AHA is sufficient to ensure interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel at [81]-[91]). The Tribunal must consider, based on the facts of a particular case and the nature and extent of sites of particular significance, whether the protective regime is sufficient to make it unlikely that there will be interference to sites of particular significance which are found to exist. In Butcher Cherel, the Tribunal found that although there were sites of particular significance in the area of the proposed licence and even in the absence of a RSHA, the AHA protection was sufficient because of the evidence of the intentions of the grantee party to protect any sites of significance and consult the native title party before any ground disturbing work was undertaken. On the other hand, there have been decisions of the Tribunal where it has taken the view that the demonstrated intentions of the grantee party and its attitude to the native title process indicate that it may be likely that interference could still occur, notwithstanding the protective regimes which had been put in place (see Copley at [44]-[45] and Aruma at [65]).
In this matter, no guidance has been provided from the grantee party as to its intended program, despite evidence from the native title party regarding their view of area, including that it contains sites of particular significance, and its proximity to areas which have been noted to be very sensitive to the native title party in previous Tribunal decisions. As such, I have assumed that the grantee party will undertake the full scope of activity to which it is entitled under the grant of an exploration licence as set out in s 66 of the Mining Act:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
It has been established that the proposed licence in this matter is adjacent to the tenement in the Boddington matter. In addition, Mr Hamlett's affidavit outlines that sites of particular significance exist on the proposed licence because the old people used the area as part of a highway, granite hills exist there which are likely to have cave paintings, and which will be difficult for a person other than the native title party to identify. As such, inadvertent interference is likely. The fact that Mr Hamlett does not refer to the sites within this proposed licence as being of 'particular significance' is not fatal in this matter. He distinguishes the area from others around it by stating that, being in the middle of the highway between Wilgie Mia and Walga Rock, the 'area would've been frequented more than other areas around there' (at 7). As such, I accept that there are likely to be areas of particular significance to the native title party, despite the fact they are not specifically identified.
In Braeburn Resources, Member O’Dea at [46] determined that given the existence of sites of particular significance to the native title party on the area concerned, some of which may be difficult to identify, and in the absence of any RSHA, there was a real risk that sites of particular significance to the native title party may be inadvertently interfered with by the grantee party. He found there was a likelihood of interference with sites of particular significance to the native title party. In this current matter, an RSHA condition has been proposed by the Government party. However, as Member O’Dea noted in Allarow at [40] the RSHA ‘only requires the conduct of surveys where ground disturbing activity is taking place’. Given no information has been provided from the grantee party in the present matter, there is no understanding of where such activity may be taking place, and inadvertent interference is possible if the grantee party enters the area without guidance from the native title party.
The native title party contentions state that the grantee party has not provided any indication of its intention to use the proposed licence other than to the fullest extent possible. The native title party also submits that access by the native title party to places within the licence will be restricted according to the timing and location of exploration activities, and that visits are necessary to allow the native title party to care for and monitor important places in their country. In Asia Investment Corporation there was no evidence from the grantee party as to its site protection plans, and the Tribunal determined the act was not an act attracting the expedited procedure. In the present matter, there are no statements from the grantee party as to its willingness to consult with the native title party to ensure their views are taken into account if there is exploration in the area.
Taking all of these factors into account, I find there is a real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.
Section 237(c) Major Interference with Land or Waters
The Tribunal is required to make an evaluative judgement 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, for example, Little).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular the locality in which the exploration or prospecting will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which could lead members of the Australian community generally to think the exploration or prospecting activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that prospecting and exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there are exceptions (see Champion at [74]-[79] and the cases cited therein).
In this matter, the native title party has not provided any evidence or contentions which clearly relate to s 237(c). The native title party has provided little information regarding the impact of the proposed licence on the relevant land and waters. They have provided the previous Tribunal decisions, which contain evidence relevant to s 237(c), but, have not directed my attention to any specific parts, or asked me to adopt that evidence for the purposes of this enquiry.
I have examined the evidence that has been presented to the Tribunal in this matter and it does not appear to me that there is any basis to suggest that there is any likelihood that the grant of the proposed licence will create major disturbance to land or create rights which will do so, in relation to s 237(c) of the Act.
Determination
The determination of the Tribunal is that the grant of Exploration licence E20/812, to the grantee party Tungsten West NL, is an act that does not attract the expedited procedure.
Helen Shurven
Member
5 December 2013
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