Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another
[2015] NNTTA 49
•23 October 2015
NATIONAL NATIVE TITLE TRIBUNAL
Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (23 October 2015)
Application No: WO2013/1345
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Isaac Hale and Others on behalf of Bunuba #2 (WC2012/004) (native title party)
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Mings Mining Resources Pty Ltd (grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 23 October 2015Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether application should be dismissed – whether application frivolous or vexatious – relevance of previous Tribunal decisions – whether there are areas or sites of particular significance to the native title holders – whether the licence is likely to interfere with areas or sites – expedited procedure does not apply
Legislation:Native Title Act 1993 (Cth), ss 29, 109, 145, 146, 147, 148, 149, 237
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA)
Cases:Albert Little & Others on behalf of Badimia/Western Australia/Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’)
Andrews v Northern Territory (2002) 170 FLR 138; [2002] NNTTA 170 (‘Andrews v Northern Territory’)
Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (‘Campbell v Murchison Metals’)
Banjo Wurrunmurra & Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield [2012] NNTTA 27 (‘Wurrunmurra v Salmon’)
Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL [2009] NNTTA 109 (‘Wurrunmurra v Black Mountain Gold’)
Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey [2010] NNTTA 89 (‘Wurrunmurra v Duffield’)
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa [2007] NNTTA 21 (‘Wurrunmurra v Ling’)
Brownley v Western Australia (1999) 95 FCR 152; [1999] FCA 1139 (‘Brownley v Western Australia’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’)
Cadbury UK Ltd v Registrar of Trade Marks (2008) 107 ALD 316; [2008] FCA 1126 (‘Cadbury UK v Registrar of Trade Marks’)
Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’)
Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 (‘Dey v Victorian Railway Commissioners’)
Dixon v Northern Territory (2002) 169 FLR 103; [2002] NNTTA 48 (‘Dixon v Northern Territory’)
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 (‘General Steel Industries Inc v Commissioner for Railways’)
Hale on behalf of the Bunuba #2 Native Title Claim Group v Western Australia [2015] FCA 560 (‘Hale v Western Australia’)
Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69 (‘Hughes v Western Australia’)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri v ASJ Resources’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Western Australia’)
McDonald v Director-General of Social Security (1984) 1 FCR 534; (1984) 6 ALD 6; (1983) 11 SSR 114; [1984] FCA 57 (‘McDonald v Director-General of Social Security’)
Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Forrest v Aruma Exploration’)
Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR 375; [2003] NNTTA 125 (‘Mt Gingee Munjie Resources v Victoria’)
Re a Solicitor [1993] QB 69 (‘Re a Solicitor’)
Re Smith (1995) 128 FLR 300; [1995] NNTTA 31 (‘Re Smith’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)
Ward v Western Australia (1996) 69 FCR 208; (1996) 136 ALR 557; [1996] FCA 1452 (‘Ward v Western Australia’)
Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9; [2011] NNTTA 172 (‘Weld Range Metals v Western Australia’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v MDR (Thomsons) Pty Ltd [2014] NNTTA 91 (‘Western Desert Lands v MDR (Thomsons)’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’)
WF (deceased) and others on behalf of the Wiluna Native Title Claimants/Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation/Western Australia/Marford Group Pty Ltd [2012] NNTTA 115 (‘WF v Marford Group’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives of the Ms Mihiarangi Piripi, Roe Legal Services
native title party Mr Chris Terren, Roe Legal Services
Representative of the Mr Hong-Jim Saw, Hetherington Exploration & Mining Title
grantee party Services Pty LtdRepresentatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party Ms Bethany Conway, Department of Mines and Petroleum
REASONS FOR DETERMINATION
[1]The central issue with which this decision is concerned is whether the applicant for an exploration licence and the State government intending to grant the licence are required to negotiate with persons claiming to hold native title in one part of the licence, where those persons assert the grant of the licence will interfere with areas and sites in other parts of the licence which are of particular significance to them in accordance with their traditions. Section 237 of the Native Title Act 1993 (Cth) (the Act) must be considered in making that decision.
[2]On 11 September 2013, the State of Western Australia gave notice of its intention to grant exploration licence E04/2327 to Mings Mining Resources Pty Ltd (Mings). The notice includes a statement that the grant of the licence is an ‘act attracting the expedited procedure.’ The inclusion of the expedited procedure statement means the licence can be granted without going through the normal negotiation procedure required under the Act unless: a) persons who hold or claim native title to the area, and whose names are entered on the Register of Native Title Claims or the National Native Title Register, object; and b) if the objection is not withdrawn or dismissed, I determine the licence is not an act attracting the expedited procedure.
[3]The licence covers an area of 9,805.49 hectares, approximately 87 kilometres north of Fitzroy Crossing in the Shire of Derby-West Kimberley. Bunuba Dawangarri Aboriginal Corporation Registered Native Title Body Corporate (BDAC) is the registered native title holder for the majority of the area, comprising 9,802.01 hectares, and holds exclusive native title rights and interests on behalf of the Bunuba people, as determined by the Federal Court in Wurrunmurra v Western Australia. The balance of the area, comprising 3.48 hectares in the north-east corner of the licence, or less than 0.1 per cent of the land and waters affected, is subject to the Bunuba #2 registered native title claim (referred to in this decision as the claim overlap area).
[4]On 16 December 2013, the persons whose names appear in the entry on the Register of Native Title Claims for Bunuba #2 (Bunuba #2) lodged an objection with the National Native Title Tribunal (the Tribunal) to the application of the expedited procedure to the grant of the licence. BDAC did not lodge an objection.
[5]I was appointed by the President of the Tribunal, Raelene Webb QC, to constitute the Tribunal for the purposes of conducting an inquiry into the objection and determining whether or not the grant of the licence is an act attracting the expedited procedure. I issued directions for that purpose on 18 June 2014.
[6]On 21 August 2014, Mings advised the Tribunal and parties that it intended to request the claim overlap area be excised from the area to be granted. The State subsequently wrote to the Tribunal, advising it had received Mings’ request and proposed to grant the licence subject to the excision on or after 12 September 2014.
[7]On 29 August 2014, I directed Bunuba #2 provide any submissions they wished to make on whether the Tribunal retained jurisdiction to proceed with the inquiry in light of the proposed excision. On 3 September 2014, Bunuba #2, through its solicitors, filed submissions to the effect that the Tribunal does retain jurisdiction and must proceed to make a determination. The State filed responsive submissions on 10 October 2014.
Special case referral
[8]At a listing hearing held on 3 December 2014, I proposed the Tribunal refer questions of law arising from the proposed excision to the Federal Court, in line with s 145 of the Act. Parties consented to the proposed referral and exchanged comments on the facts, which were considered and settled as a Statement of Agreed Facts at a hearing on 9 January 2015. The parties were, however, unable to agree on the specific questions to be referred.
[9]On 22 January 2015, I referred the following questions of law to the Federal Court:
1.Is the proposed grant of E04/2327, subject to the excision, an act to which the current section 29 notice applies?
2.If the answer to question one is ‘yes’, is the scope of the inquiry into the expedited procedure objection concerned with the area of:
a) the grant of E04/2327, being the proposed act specified in the section 29 notice?
b) the grant of E04/2327, subject to the excision of the Bunuba #2 claim overlap area? Or
c) the Bunuba #2 claim overlap area.
[10]The Federal Court delivered judgment in the matter on 5 June 2015 (see Hale v Western Australia). The first question was answered in the affirmative. The second question was answered in the following manner:
the scope of the inquiry into the expedited procedure objection is concerned with the area of (a) the grant of E04/2327 being the proposed act specified in the s 29 notice.
Expedited procedure inquiry
[11]Following the decision in Hale v Western Australia I issued further directions, on 15 June 2015, requiring parties to file evidence and contentions relating to the criteria to which I must have regard for the purposes of determining whether the expedited procedure applies. These criteria are defined in s 237 of the Act and require me to determine whether the grant of the licence is likely to:
(a)interfere directly with the carrying on of the community or social activities of the native title holders in relation to the land or waters concerned;
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to the native title holders in relation to the land or waters concerned; or
(c)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.
[12]I must answer these questions by making a predictive assessment of whether the grant of the licence is likely to have those effects. In performing this assessment, I must look at what is likely to occur as a result of the grant, and decide whether there is a real chance or risk of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
[13]On 16 September 2015, I provided parties with a copy of a map of the licence and surrounding areas, produced by the Tribunal’s Geospatial Unit, to be used in the inquiry. No party objected to my intended use of the map, subject to my consideration of submissions made by Bunuba #2 and the State, regarding the location of Turtle Hole, which I will come to later in these reasons.
[14]Bunuba #2 contend the grant of the licence is likely to interfere with areas or sites of particular significance to the Bunuba people. It is not in dispute that the group of people on whose behalf the Bunuba #2 claim is made is the same group of people that comprises the common law native title holders for whom BDAC holds native title in the determined area, except that the Bunuba #2 claim group includes persons descended from an additional apical ancestor. In other words, the people on whose behalf the Bunuba #2 claim is made are, for the most part, also members of the determined native title claim recognised in Wurrunmurra v Western Australia.
[15]In making contentions, Bunuba #2 rely on: the evidence of Mr George Brooking, a named applicant in the Bunuba #2 claim; the affidavit of Mr Nicholas Green, an anthropologist and archaeologist; and the evidence presented to and findings made by the Tribunal in previous determinations concerning tenement applications that overlapped parts of the licence.
[16]The State contentions argue (at paragraph 8) that Bunuba #2 ‘cannot claim that its members in their role as members of the NTP [Bunuba #2] (as distinct from members of the group presented by BDAC) possess areas or sites of particular significance within that part of the proposed tenement constituted by part of the determined area held by BDAC – such areas should be “protected” by BDAC.’
[17]On this basis, the State contends that, given the minimal overlap between the licence and the Bunuba #2 claim, there is little, if any, likelihood the grant will interfere with areas or sites of particular significance to members of the claim group, and the objection should be dismissed. Alternatively, the State submits I should take into account the intended excision of the claim overlap area and dismiss the objection on the basis that the licence will not cause interference of the relevant kind.
[18]I will address the following issues in these reasons:
(a)Should the objection be dismissed?
(b)What weight should be given to the evidence produced by Bunuba #2?
(c)What is the relevance of previous Tribunal determinations?
(d)Are there any areas or sites of particular significance that may be affected by the grant of the licence?
(e)Is the grant of the licence likely to interfere with areas or sites of particular significance?
(i) What is likely to constitute interference?
(ii) What activities are likely to be undertaken by Mings?
(iii) What are Mings’ intentions with respect to heritage protection?
(iv) Is the area ‘site rich’?
(v) Is there a real risk of interference in the circumstances?
(a)Should the objection be dismissed?
[19]As I understand it, the State’s argument is that, despite the commonality between Bunuba #2 and BDAC (as outlined above at [14]), I should only have regard to the rights and interests of Bunuba people as members of the claim group, as distinct from their identity as members of the determined native title claim group represented by BDAC. If I were to accept this argument, then according to the State, I would only be entitled to consider the likelihood of interference with areas or sites of particular significance in the claim overlap area. On this basis, the State says the objection should be dismissed, as the degree of overlap means there is little, if any, chance the act will involve interference with areas or sites within the claim overlap area.
[20]The State submits that, because s 29(2) of the Act distinguishes between a registered native title body corporate and a registered native title claimant, they must be treated as distinct entities. Bunuba #2 contend that s 29 is only concerned with ensuring all relevant native title parties who may be affected by a proposal, including any registered native title bodies corporate or registered native title claimants, are notified about the proposal. In reply, the State argues that, although the licence covers both the registered claim and an adjoining area where native title has been determined in favour of another party, the objection is based on the likelihood of interference within the determined area. As such, the State contends the objection should not be allowed to succeed where the determined native title holders (in this case, BDAC) have not objected to the application of the expedited procedure, as the claimants have ‘no relevant native title’ in the determined area. Accordingly, the State says the objection should be dismissed on the basis that it is founded on potential interference with areas or sites of particular significance over which the objector, in its own capacity, does not claim to hold native title.
[21]There are three specific grounds on which I may dismiss an objection: first, if I am satisfied the objection is frivolous or vexatious; second, if I am satisfied that I am not entitled to deal with the objection; and third, if the objector fails to proceed with the objection in a reasonable time or fails to comply with a direction (see ss 147 and 148 of the Act). I will deal with the frivolous/vexatious arguments shortly; it has already been established by the Federal Court in Hale v Western Australia that I am entitled to deal with the objection; and there is no suggestion that Bunuba #2 have neglected to prosecute its objection in a timely fashion or failed to comply with any direction of the Tribunal.
[22]I am also empowered to dismiss an application on the written request of the objector if I am satisfied it is appropriate to do so (see s 149 of the Act). In this case, the request to dismiss the application is made by the State rather than Bunuba #2, so this basis does not fall for consideration.
[23]It is not in issue that I am entitled to deal with the objection. In the proceedings before the Federal Court, the parties agreed, and it was accepted by the Court, that the Tribunal retains jurisdiction to hear and determine the objection, notwithstanding the proposal to excise the claim overlap area.
[24]Though the State’s submission was not formulated in these terms, it seems to me the foundation on which it rests is that the objection is frivolous or vexatious. What the State’s submission amounts to is an argument that Bunuba #2 are not entitled to succeed in its objection based on the potential interference with areas or sites which are situated on land and waters over which they do not claim to hold native title, but rather hold native title through BDAC.
[25]An application may only be characterised as frivolous or vexatious if it is ‘manifestly obvious that such an application is unsustainable and doomed to fail’ (see Andrews v Northern Territory at [74], citing Dixon v Northern Territory at [14]). If there is a real question to be determined, whether of fact or law, then the proceedings cannot be dismissed as frivolous or vexatious (see General Steel Industries v Commissioner for Railways at [10], citing Dey v Victorian Railways Commissioners at 91).
[26]In this case, the question raised by the objector is whether the act is likely to interfere with areas or sites of particular significance to the native title holders. It is worthwhile setting out the text of the relevant provision in full:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
...(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.
[27]The reference to a trust created under Division 6 of Part 2 is a reference to a registered native title body corporate that has been determined to hold native title on behalf of the common law holders as part of a positive determination of native title. In this respect, s 237(b) directs attention to the likelihood of interference with areas or sites of particular significance to the common law native title holders, rather than the registered native title body corporate. A registered native title claimant is taken to be a holder of native title (see Brownley v Western Australia at [17]; Little v Lake Moore Gypsum at [61]-[62]). The persons on whose behalf the claim is brought are also native title holders for the purpose of the inquiry.
[28]Bunuba #2 have produced evidence relating to the existence of areas and sites within the licence which are said to be of particular significance to Bunuba people. In addition, it has produced evidence regarding the probable existence of other sites of significance within the licence. Bunuba #2 also rely on previous determinations made by the Tribunal in relation to proposals affecting parts of the same area. I will consider the relevance and weight of this material in due course. Nevertheless, it establishes the objection has a clear evidentiary basis.
[29]The State’s contention, as I understand it, is that this evidence is only relevant to the extent it establishes the existence of areas or sites of particular significance within the claim overlap area. On that basis, the State argues there is little, if any, likelihood the grant will interfere with areas or sites of particular significance to members of the claim, given the size of this area. Even if I were to accept that contention, it serves to underscore the fact there is a real question that must be determined. The same may be said of the State’s intention to excise the claim overlap area from the grant of the licence, which is relevant to the extent it affects the likelihood of interference.
[30]In any event, the Federal Court in Hale v Western Australia rejected the argument that the ‘land or waters concerned’ in s 237 are confined to the ‘land or waters’ which overlap the claim or determined area of the objector. The Court expressly held that, once an objection is made, the Tribunal must determine whether the act is an act attracting the expedited procedure and hold an inquiry to determine the question. It follows that whether or not the proposal is likely to interfere with areas or sites of particular significance to the native title holders is an evidentiary question. Barker J held (at [113]):
Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
[31]As noted at the outset of these reasons, the Federal Court has found that just because Bunuba #2’s standing to object arises from the status as registered claimants for part of the licence area, does not necessarily mean the grant of licence and the activities which can be done under that grant might not interfere with areas or sites of particular significance to them, which are outside the area to which they claim native title but within the area of the licence. Once an objection is made, the Tribunal must determine whether the act is an act attracting the expedited procedure and hold an inquiry to determine that question. The likelihood that an act will interfere with areas or sites of particular significance to the native title holders is a factual question for inquiry and determination by the Tribunal as the arbitral body.
[32]In the present case, the factual question I must answer is whether the evidence establishes the existence of areas or sites of particular significance to persons holding, or claiming to hold, native title in the land or waters covered by the licence and, if it does, whether the grant of the licence is likely to interfere with those areas or sites. It does not matter that the native title rights and interests in the licence are, apart from the claim overlap area, held by BDAC. All that is required for the objection to succeed is that there are areas or sites of particular significance to the native title holders, including those on whose behalf the Bunuba #2 claim is made, and that there is a real risk of interference.
[33]On this basis, I do not accept there are grounds for dismissing the objection.
(b)What weight should be given to the evidence produced by Bunuba #2?
[34]As noted earlier, Bunuba #2 rely on the evidence of Mr Brooking and the affidavit of Mr Green in support of its objection.
[35]The evidence of Mr Brooking is outlined in the affidavit of Mr Rowan Gallagher. Mr Gallagher is a solicitor who was at the time employed by the representatives of Bunuba #2. Mr Gallagher deposes he was instructed that Bunuba #2 are presently impecunious, such that it could not fund the attendance of a solicitor or anthropologist on country to assist with its participation in the inquiry.
[36]Mr Gallagher’s affidavit records a telephone conversation he had with Mr Brooking and Mr Brooking’s niece on 27 June 2015. That conversation concerned Mings’ application for the licence, the location of the licence, and the locations of areas and sites of significance to the Bunuba people. Mr Gallagher deposes that Mr Brooking is a senior Bunuba person and has a great deal of knowledge in relation to the Bunuba #2 claim, the determination area, and the licence area.
[37]Mr Green’s affidavit outlines his belief, based on his experience as an anthropologist and archaeologist who has previously acted for and worked with the Bunuba people, regarding the probability that sites of significance to the Bunuba people are present in the licence area. Mr Green deposes he has studied the licence area using predictive modelling, and lists areas within the licence that, in his opinion, would likely include areas of significance to the Bunuba people. Mr Green also expresses the view that the conduct of mining exploration without consultation and an appropriate heritage survey would create a significant risk of Mings breaching the Aboriginal Heritage Act 1972 (WA) and causing detriment to the Bunuba people.
[38]The State submits that Bunuba #2 did not provide clear and compelling evidence as to the existence of areas or sites of particular significance or the potential for the act to interfere with those areas or sites. The State argues that Mr Brooking’s evidence is vague and speculative, reflects a lack of appreciation of the location of the licence and suggests a less than full and accurate understanding of the proposed activities. The State also argues that Mr Green’s affidavit suggests he does not have a full understanding of the activities planned to be undertaken by Mings. In reply, Bunuba #2 argue they only became aware of the activities proposed to be undertaken in the licence area through the submissions filed by Mings in this inquiry. Bunuba #2 submit that I should take into account the fact that Mr Brooking and others who have the right to speak for country are located in remote parts of the Kimberley, which has made obtaining evidence more difficult.
[39]Though I am sympathetic to the difficulties of obtaining evidence where the people who speak for country are located in remote areas of the State, I have some reservations about the way Mr Brookings evidence has been presented in the form of hearsay. However, s 109 of the Act outlines the Tribunal's way of operating, which includes not being bound by technicalities or rules of evidence. Concerns I hold in relation to the form of such evidence does not necessarily mean I should disregard it, particularly where that evidence is logically probative (see Hughes v Western Australia at [13]-[18]). While the State has impugned the quality of Mr Brookings' evidence, it has not challenged the reliability of that evidence or the way it has been presented. Similarly, Mings has made no comment on the evidence, subject to one issue to which I will turn later in these reasons. Importantly, the evidence given by Mr Brooking by way of Mr Gallagher’s affidavit is corroborated by evidence given by him and others in matters which have come before the Tribunal in the past.
[40]I do not agree that the evidence of Mr Brooking is vague and speculative, though in some respects it does lack precision. Although it is apparent Mr Brooking did not have knowledge of the exact boundaries of the licence, I accept he had a good general understanding of the area in which the licence is situated based on the information provided to him by Mr Gallagher. In this respect, his evidence is relevant to the extent it identifies areas and sites of significance in that area and the nature of their significance, though I accept it is of less assistance in terms of determining whether the grant of the licence is likely to interfere with such sites.
[41]The evidence of Mr Green is based on his application of predictive modelling to the licence area. Mr Green does not explain this concept or the methodology involved, but I understand it to mean his evidence is based on an analysis of the geography of the licence area and the sites which tend to be associated with particular geographical features, rather than specific knowledge of what is actually there. Mr Green states the absence of sites registered under the Department of Aboriginal Affairs (DAA) Aboriginal Heritage Inquiry System, in the licence, does not mean there are no sites of significance to the Bunuba people in that area, as registration usually only occurs as a result of a heritage survey and, in his experience, Aboriginal people sometimes request that sites not be registered.
[42]A precondition of an inquiry for the purposes of s 237(b) is the identification of areas or sites of particular significance (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). Although it may be useful in other contexts, the application of predictive modelling is not a reliable basis on which to identify the existence of areas or sites of particular significance for the purposes of this inquiry. Just because a certain class of site tends to be associated with a specific geographical feature does not necessarily lead to the conclusion that a site is going to exist wherever that feature is present. Even if I were to accept that certain kinds of sites are likely to exist in the licence area, that information says nothing about the significance of the sites. No inferences can be drawn from the general observation that sites may, for various reasons, be unregistered. In light of these considerations, I have given little weight to the evidence of Mr Green.
(c)What is the relevance of previous Tribunal determinations?
[43]Bunuba #2 also rely on the evidence presented to and the findings made by the Tribunal in previous matters involving tenements that covered some of the same areas as the present licence, namely Wurrunmurra v Duffield, Wurrunmurrav Ling and Wurrunmurra v Black Mountain Gold.
[44]In each of these matters, the Tribunal determined the expedited procedure did not apply to the grant of an exploration licence. According to the evidence of Mr Gallagher, the exploration licence considered in Wurrunmurra v Black Mountain Gold (E04/1712) overlapped the present licence by 83.3 percent, whereas the tenements considered in Wurrunmurra v Duffield and Wurrunmurra v Ling (E04/1737 and E04/1503 respectively) each overlapped the present licence at 6.7 percent, without overlapping one another or the area covered by E04/1712. I note that Wurrunmurra v Duffield also concerned an adjacent tenement, E04/1736, but no information has been provided about that tenement. Information provided by the State, through the Department of Mines and Petroleum (DMP), confirm these overlaps (and also that E04/1736 did not overlap the present licence).
[45]The State submits I should not automatically apply previous determinations made by the Tribunal to the circumstances of this particular inquiry. The State argues I should have regard to Mings’ evidence as to how it intends to conduct its activities if the licence is granted, and on this basis the objection should be distinguished on the facts from the previous determinations. The State submits Bunuba #2 should do more than simply rely on decisions of the Tribunal and should provide greater clarity as to the areas or sites of particular significance which they say will be interfered with if the licence is granted.
[46]Mings also disputes that previous determinations in the area should be applied in this inquiry. It contends that large portions of the previous tenements considered covered areas which are not subject to the present licence, which it says only covers 50 percent of the area within E04/1503, 56.8 percent of the area within E04/1712 and 6.2 percent of the area within E04/1737. Mings also argues the evidence in the previous determinations suggests that one of the sites on which they were based, and on which Bunuba #2 now rely, is located outside the area affected by the present licence. Furthermore, Mings states that it does not intend to fully exercise the rights conferred by the licence, is willing to enter into a heritage protection agreement, and will consider excluding from the licence area graticular blocks that contain registered sites, places or areas which can be identified.
[47]I am not bound by previous decisions of the Tribunal (see Re Smith at 305; Mt Gingee Munjie Resources v Victoria at [20]). It is, however, within my discretion to adopt any report, finding, decision or determination made by the Tribunal (see s 146 of the Act). Although there is no express statutory power to do so, I am also entitled to have regard to evidence given in other proceedings, provided it is relevant (see Weld Range Metals v Western Australia at [149], citing Re a Solicitor at 77 and Cadbury UK v Registrar of Trade Marks). While I can pay regard to previous decisions of the Tribunal and, where appropriate, give weight to those decisions, I must nevertheless consider the entirety of the evidence before me (see Karajarri v ASJ Resources at [14]).
[48]The decisions of the Tribunal in Wurrunmurra v Duffield, Wurrunmurrav Ling and Wurrunmurra v Black Mountain Gold are relevant to the extent they concern the existence of areas or sites of particular significance to the native title holders in the area where the licence is proposed to be granted. While I appreciate the land and waters with which those decisions were concerned do not precisely correspond to those now under consideration, I accept the degree of overlap is such that the Tribunal’s findings in those decisions and the evidence on which they are based are highly relevant to the questions which need to be answered in this inquiry. However, those findings must be considered in the context of what is now being proposed and the evidence of Mings’ intentions, including as to heritage protection.
(d)Are there any areas or sites of particular significance that may be affected by the grant of the licence?
[49]In the evidence reported to Mr Gallagher, Mr Brooking refers to a number of areas, sites and other features in the area north-west of Richenda Gorge, south-west of Mt Broome, and south of the Leopold Ranges (or King Leopold Ranges). These include:
(a)Gunbi: Mr Brooking describes Gunbi as an area that ‘goes west [from Richenda Gorge] along near the Richenda River and North up towards Mount Broome and the Leopold Ranges’ (he also states that the area ‘goes up to’ Turtle Hole). He states the area is important because law ceremonies used to be held there ‘in the early days’ and ‘some people still go up there.’ Mr Brooking states Gunbi is ‘one place, over a big area’ rather than an aggregation of smaller sites.
(b)Dingo dreaming: Mr Brooking refers to an ‘important dreamtime story’ involving two dingoes ‘who travelled over that country.’ He states that Turtle Hole is ‘right in there, in that area.’
(c)Living water: Mr Brooking states that water ‘runs from Lennard River, Leopold Ranges, that high country, past Mount Broome down towards Richenda Gorge.’ He states the water is ‘living water’ and says ‘there are lots of stories for that area where the water runs and for Richenda Gorge.’
(d)Paintings: Mr Brooking states there are paintings in the vicinity of Turtle Hole and along where the living water runs, especially in ‘the Mount Broome area.’
(e)Ceremonial places: Mr Brooking states there are ceremonial places in the area, the locations of which are known to Bunuba people but ‘are not marked for white fellas.’
(f)Burial sites: Mr Brooking states ‘some of our old people are in that country’ and says they should not be disturbed.
[50]In Wurrunmurra v Duffield, Mr Oscar gave evidence by way of affidavit in relation to an area known as Gunbi. Mr Oscar is described in the decision as one of the named applicants for the Bunuba claim and is also a named applicant for Bunuba #2. In his affidavit, Mr Oscar states that Bunuba people ‘held Law ceremonies there in the early days.’ He describes Gunbi as the ‘area around Mount Broome including the exploration license [sic] area E04/1737.’ This is similar to the evidence given by Mr Brooking in Wurrunmurra v Black Mountain Gold, where he also described Mt Broome as ‘a very important place for us.’ In Wurrunmurra v Ling, Mr Marr deposed that Gunbi ‘includes all the area around and including Mt Broome.’ Mr Marr also gave evidence that Bunuba people ‘must watch this area carefully because it’s a dangerous place and has significant meaning to our people.’ Mr Marr is described as a senior law person and a named applicant for the Bunuba Combined Native Title Determination Application.
[51]There is a registered site approximately one kilometre to the east of the licence and approximately 15 kilometres south of Mt Broome that is called ‘Gunbi.’ The site has a radius of about one kilometre according to the DAA Aboriginal Heritage Inquiry System, and is in the vicinity of Richenda Gorge. In Wurrunmurra v Ling, the Tribunal distinguished the registered Gunbi site from the area situated around Mt Broome. Similarly, in Wurrunmurra v Black Mountain Gold, the Tribunal accepted there is area described as Gunbi which extends south and west of Mt Broome, and that the same name has been given to the registered site.
[52]Mings contends the licence is unlikely to affect Gunbi, as the site falls outside the licence. It notes the summit of Mt Broome was one kilometre from the eastern boundary of E04/1503, whereas the boundary of the present licence is located further to the west. It also notes the only overlap between the present licence and E04/1737 is a small area to the south of the licence which is some distance from the Gunbi registered site and the surrounding areas. Similarly, Mings argues the portion of E04/1712 which covered the registered site is outside the area of the present licence.
[53]I accept the evidence of Mr Brooking and the evidence given in the previous matters establishes that Gunbi is an area of particular significance to the Bunuba people, including the people comprising Bunuba #2. The evidence taken as a whole suggests Gunbi comprises an area extending: from Richenda Gorge, including the registered site; west in the vicinity of Richenda River; and north towards (and including) Mt Broome. Although the precise borders of this area are not readily apparent, I accept that part of Gunbi extends into the licence, especially in light of Mr Brooking’s statement that the area ‘goes up to Turtle Hole,’ which I will turn to in due course.
[54]Mr Brooking described the dingo dreaming in further detail in Wurrunmurra v Black Mountain Gold. In that matter, Mr Brooking deposed the two dingoes travelled from Fairfield and Fairfield homestead, located some 30 kilometres east-south-east of the licence, across E04/1736 and E04/1737 to Windjana to the east of the licence, and then north to Mount Bell and Yamara Gap. Similar evidence was also given by Mr Oscar in Wurrunmurra v Duffield. Although the tenements considered in these two matters only partly overlap the area covered by the present licence, I accept part of the dingo dreaming travels through the licence area, given Mr Brooking’s evidence that Turtle Hole is close to the dreaming track (and I accept Turtle Hole is likely to be on the licence, as outlined below). Nevertheless, there is no indication the dingo dreaming is connected with any areas or sites of particular significance situated within the licence.
[55]Turtle Hole is not identified by reference to any other place name or geographical feature. The map circulated by the Tribunal identifies a place named Turtle Hole 160 kilometres beyond the northern border of the map (or approximately 250 kilometres from the licence area). The State argues that, in the absence of any identifiable location named Turtle Hole, it should be concluded the location depicted to exist off the map is the place identified by Mr Brooking. On this basis, the State submits the licence is unlikely to affect the site.
[56]I do not find that argument particularly persuasive. It is quite possible the site to which Mr Brooking refers as being on the licence is only known as ‘Turtle Hole’ to Bunuba people. There is also evidence to suggest that a site known as Turtle Hole is located within the licence area. In Wurrunmurra v Duffield, Mr Oscar referred to Turtle Hole in connection with Mt Broome and Richenda Gorge. In Wurrunmurra v Black Mountain Gold, the Tribunal accepted the evidence of Mr Brooking that Turtle Hole was situated in E04/1712, which covers 56.8 percent of the licence in this matter, as noted earlier. The affidavit of Mr Gallagher also attaches a map of the licence which depicts two places, Turtle and Turtle Creek 1, located in close proximity to one another in the centre of the licence. Although Mings notes these sites only refer to prospects, it may be inferred that the names of these prospects were derived from the name of a local site. In my view, evidence supports the finding that Turtle Hole, as known by Bunuba #2, is located within the licence area.
[57]Mr Brooking does not explain in any detail the significance of Turtle Hole. Although he mentions Turtle Hole in the context of describing the dingo dreaming, there is no suggestion the dingo dreaming story is actually connected with Turtle Hole. However, in Wurrunmurra v Duffield, Mr Oscar states that Turtle Hole is a sacred site and dreaming place. The story associated with Turtle Hole and its relationship to the site are also described by Mr Brooking in Wurrunmurra v Black Mountain Gold. On the basis of this evidence, I am satisfied Turtle Hole is a site of particular significance to the Bunuba people, including the people comprising Bunuba #2. In this respect, I adopt the Tribunal’s findings in Wurrunmurra v Duffield and Wurrunmurra v Black Mountain Gold.
[58]In Wurrunmurrav Duffield, Mr Oscar stated there is living water around the Leopold Ranges, which could also be found in and around E04/1736 and E04/1737. Similar evidence was given by Mr Brooking in Wurrunmurra v Black Mountain Gold. In the present matter, Mr Brooking states this water travels from Lennard River, which at its closest point is located approximately eight kilometres north-east of the licence area, past Mt Broome and down towards Richenda Gorge. Although part of this area, including Richenda Gorge, was covered by E04/1712, the present licence is located further to the west. I acknowledge the Tribunal’s findings in Wurrunmurra v Duffield and Wurrunmurra v Black Mountain Gold that areas of living water may be of particular significance to Bunuba people. However, in light of the evidence reported to Mr Gallagher, I am not satisfied there are any such areas in the land and waters affected by the licence in the present inquiry.
[59]It follows that the paintings which can be found around areas of living water are unlikely to be affected by the grant of the licence, though I accept paintings near Turtle Hole may be affected by the licence. As neither the evidence of Mr Brooking nor the evidence previously given to the Tribunal address the significance of these paintings, I am not satisfied they are sites of particular significance for the purposes of s 237(b) of the Act.
[60]I accept there is evidence to support the particular significance of ceremonial sites in accordance with the traditions of the Bunuba people. A similar conclusion was reached by the Tribunal in Wurrunmurra v Ling. According to Mr Brooking, there are ceremonial places in the licence area which are known to Bunuba people, though they are not marked for white people. In Wurrunmurra v Duffield, Mr Oscar stated that several ceremony grounds are located in the Mt Broome area, which is consistent with the evidence of Mr Brooking and Mr Oscar concerning the significance of the Gunbi area. However, given the size of the Gunbi area, I am not prepared to find that any of these sites are necessarily situated within or proximate to the licence area, especially as their locations are apparently known to Mr Brooking and presumably other Bunuba people but have not been disclosed in this inquiry. In this instance, it is not enough to assert there are ceremonial sites in the area, particularly when that assertion is only based on a general description of the location where the licence is situated.
[61]In terms of burial sites, Mr Brooking gave evidence in Wurrunmurra v Black Mountain Gold regarding the existence of culloden (human remains) all along the Leopold Ranges from the Fitzroy River to Mt Broome. Mr Brooking also deposed to the importance of these sites to the Bunuba people and similar evidence was given by Mr Oscar in Wurrunmurra v Duffield. Although the Tribunal noted the evidence regarding these sites was ‘not very specific’ as to the location of the sites, it found it was probable at least some of them were located within E04/1712, given the tenement was situated in the general area described by Mr Brooking and its northern part covered a section of the Leopold Ranges. As the northernmost portion of the present licence also extends into this area and considering the nature of these sites, I adopt the Tribunal’s finding regarding the probable existence of burial sites in the licence area.
[62]In summary, I am satisfied Gunbi is an area of particular significance to the Bunuba people, including the people comprising the Bunuba #2 claim, in accordance with their traditions, and that owing to its size, part of Gunbi overlaps the licence. I am also satisfied that Turtle Hole, a site of particular significance, exists on the area comprising the licence. Furthermore, I am satisfied that burial sites of particular significance to the Bunuba people, including the people comprising Bunuba #2, are likely to be situated on the licence. In relation to ceremonial places, I conclude they are of particular significance but insufficient evidence was provided for me to conclude they are on the licence. In relation to the Dingo Dreaming, living water and paintings, there is insufficient evidence for me to conclude they are sites of particular significance to the Bunuba people.
(e)Is the grant of the licence likely to interfere with areas or sites of particular significance?
(i) What is likely to constitute interference?
[63]In Wurrunmurra v Duffield, Mr Oscar stated the Mt Broome area is ‘generally a place where people should not go.’ A similar comment was made by Mr Brooking in Wurrunmurra v Black Mountain Gold. In Wurrunmurra v Ling, Mr Marr stated that even walking in this area is dangerous and ‘against our law.’ On the basis of the evidence provided by Mr Brooking in this inquiry and the evidence given by him, Mr Oscar and Mr Marr in previous Tribunal matters, I infer that ‘the Mt Broome area’ is coextensive with Gunbi. In Wurrunmurra v Ling, the Tribunal noted the ‘responsibility to ensure that permission is properly given before entering the area is consistent with the Tribunal’s knowledge of similar situations.’
[64]In Wurrunmurra v Black Mountain Gold, Mr Brooking deposed that if a site is damaged, Bunuba people will feel upset and sad, ‘like someone close to us has died.’ Mr Brooking also stated that ‘if blackfellas damage any ngarranggarni or dreamings in my country, they would get sick.’ In the evidence provided to Mr Gallagher, Mr Brooking states that burial sites should not be disturbed.
(ii) What activities are likely to be undertaken by Mings?
[65]The licence, if granted, will authorise Mings to:
·enter and re-enter the licence area with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals;
·explore for minerals, and carry on such operations and works in the licence area as are necessary for that purpose including digging pits, trenches and holes, and sinking bores and tunnels;
·excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances from the land within the prescribed amount or in such greater amount as the relevant Minister may approve in writing. The prescribed amount is 1,000 tonnes over the life of the licence; and
·take and divert, subject to the Rights in Water and Irrigation Act 1914 (WA), water from any natural spring, lake, pool or stream situated in or flowing through the licence area and to sink wells or bores and take water so obtained for domestic purposes and for any purpose in connection with exploring for minerals on the land: see s 66 of the Mining Act 1978 (WA).
[66]I note the exercise of these rights will be subject to the conditions and endorsements listed in Appendix 1 to these reasons. These include conditions: requiring the licence holders to seek written approval of DMP before using mechanised equipment for the purpose of surface disturbance or excavation; requiring the rehabilitation of disturbances to the surface of the land made as a result of exploration and the removal of waste materials; and an endorsement drawing the licensee’s attention to the provisions of the Aboriginal Heritage Act.
[67]Mings contends it does not intend to fully exercise the rights conferred by the licence. It states the proposed exploration in the initial periods of the grant will include and begin with activities ‘associated with low impact minor disturbances’ including prospecting, field reconnaissance, geological mapping, surface geophysics, soil sampling, aerial surveys and ground based surveys. Mings states the information gathered in these initial stages will assist in planning to provide background for further surveys and to identify areas where ground will be cleared for drilling.
[68]Bunuba #2 submit the evidence of Mings’ intentions ought to be afforded significantly less weight, as it is not provided by way of sworn evidence or affidavit but in the form of submissions without supporting evidence. The State argues this submission is put too strongly and, while allowance should be made for the fact the information is provided by way of submissions, the submissions clearly set out Mings’ intentions as to its future conduct and should be relied on by the Tribunal.
[69]As I noted above, I am not bound by the rules of evidence. Though information provided by way of submissions without supporting evidence will not carry the same weight as sworn evidence, this does not mean the material should be disregarded. In these matters, the Tribunal should take a practical approach. In this instance, I accept that Mings’ representative is acting on instructions regarding the nature and scope of the proposal, and I am prepared to give that material some weight.
[70]Nevertheless, I do not consider the proposal outlined in Mings’ submissions to be particularly informative about the activities Mings proposes to undertake on the licence. Many of the activities described in the submissions relate to the initial phase or phases of exploration. The proposed exploration program described in the submissions clearly contemplates that exploration activity will intensify in later stages and may include activities such as ground clearance and drilling. On this basis, I am not satisfied the proposed exploration will necessarily be confined to low impact or non-intrusive activities.
(iii) What are Mings’ intentions with respect to heritage protection?
[71]Through contentions submitted and signed by its representative, Mings states it will comply with all conditions and legislative requirements, including but not limited to the Aboriginal Heritage Act, the MiningAct and subsidiary legislation. It states it has never been accused of breaching or been prosecuted under the Aboriginal Heritage Act. Mings says it will conduct exploration on a site avoidance basis in respect to any identified heritage sites and will otherwise conduct ground-disturbing activities in accordance with its obligations and following discussion with Bunuba #2.
[72]Mings contentions outline it is committed to protecting heritage and is willing to enter into a heritage protection agreement that is similar or identical to a Regional Standard Heritage Agreement (RSHA). I note there is no evidence to indicate Mings has executed an RSHA and sent that to Bunuba #2, nor does the State indicate they will impose an RSHA condition on the grant of the licence. Mings states it is willing to enter a heritage protection agreement in similar terms to the agreement proposed by Bunuba #2 save for ‘some modifications to fee structure.’ It attributes the parties’ failure to reach an agreement on the grant of the licence to the ‘prohibitively high costs’ in the agreement proposed by Bunuba #2.
[73]Bunuba #2 reject Mings’ submission that the failure to reach agreement was due to costs and state there is no evidence to support the submission. Indeed, Bunuba #2 stated they would seek to adduce evidence of negotiations with Mings if I was minded to give any weight to the submission.
[74]It is not necessary for me to resolve this issue for the purposes of the inquiry. There is little point in speculating about the reasons why parties did not reach agreement. As Member O’Dea observed in Cherel v Faustus Nominees (at [32]), the debate about where the responsibility lies for the breakdown in negotiations and the failure to reach agreement is irrelevant to the inquiry. On the other hand, the undertakings and commitments given by the proponent may be of significant importance to the issues which must be determined.
[75]In Western Desert Lands v MDR (Thomsons), the Tribunal gave weight to a proponent’s undertaking to consult with traditional owners and enter into a heritage protection agreement before commencing any ground disturbing works. In the present matter, Mings has not made an undertaking to enter into an agreement of the kind proposed by Bunuba #2, but has expressed its willingness to do so. While this is relevant to the extent it demonstrates Mings’ awareness of the concerns held by Bunuba #2, it does not follow that the risk of interference should necessarily be assessed on this basis. Mings has given no specific indication of how it intends to proceed if such an agreement cannot be reached.
[76]On the other hand, Mings has given a number of specific undertakings with respect to heritage protection. Namely, Mings proposes to:
a. notify Bunuba #2 about proposed on-ground works (whether ground-disturbing or not) and provide detailed information about those works before commencing them;
b. advise Bunuba #2 of dates when Mings will be on-ground;
c. take additional care when conducting on-ground activity with respect to requests made by Bunuba #2;
d. limit the use of motor vehicles where possible;
e. where possible, complete rehabilitation of any disturbances as exploration occurs;
f. avoid any sites or areas of significance if Bunuba #2 provides notice and coordinates; and
g. register heritage surveys completed, in compliance with the Aboriginal Heritage Act.
[77]While these undertakings are generally consistent with the requirements of an RSHA, in some ways they conflict with the terms of the agreement preferred by Bunuba #2. In particular, the heritage impact assessment process outlined in the preferred agreement relies on the explorer providing notice to Bunuba #2, following which Bunuba #2 will determine, in consultation with the traditional owners, whether a work program survey is required. The outcome of the survey is that the activities proposed are cleared, cleared with conditions or not cleared. There is also no requirement for the traditional owners to identify sites by reference to coordinates or otherwise.
[78]In my view, it is appropriate to have regard to the submissions Mings has made in relation to the heritage protection measures it intends to adopt. It is also a relevant consideration that Mings is willing to enter into a heritage protection agreement (see Champion v Western Australia at [74]). However, as it stands, there is no RSHA condition to be applied to the grant of the licence, nor is there an agreement between the parties in relation to how heritage protection measures will be adopted or implemented.
(iv) Is the area ‘site rich’?
[79]In determining the likelihood of interference, I am entitled to have regard and give significant weight to the regulatory regime established under the Aboriginal Heritage Act (see Parker v Western Australia at [35]). However, Bunuba #2 contend that, in light of the Tribunal’s findings in Wurrunmurra v Duffield, Wurrunmurra v Ling and Wurrunmurra v Black Mountain Gold, the area affected by the licence is ‘site rich’ and the Aboriginal Heritage Act, therefore, does not provide adequate protection. In particular, Bunuba #2 rely on the Tribunal’s finding in Wurrunmurra v Duffield (at [50]) that the area of Fitzroy Crossing and the areas to the north and east of it and ‘extending to the north-west for over 100 kilometres’ contain ‘a considerable number of areas and sites of particular significance’ to the Bunuba people.
[80]The State does not accept the area is ‘site rich’ and contends the assertion that the area is ‘site rich’ is of no forensic value to the Tribunal. It submits the existence of sites of particular significance, their number and distribution are questions of fact in each case and the existence of some identified sites or places of some unspecified importance does not mean the area is ‘site rich.’ In reply, Bunuba #2 submit the fact an area is ‘site rich’ has significant forensic value, because:
(a)the evidence of Mr Brooking and Mr Green establishes that Bunuba people prefer to keep knowledge of some sites from ‘white fellah government departments’;
(b)no heritage surveys have been undertaken in the licence area, making it difficult to pinpoint significant sites;
(c)in Wurrunmurra v Ling, the Tribunal held the fact an area is ‘site rich’ may be taken into account in determining whether the regulatory regime will be sufficient to ensure that interference is unlikely to occur; and
(d)in the absence of evidence to the contrary, I should follow previous decisions of the Tribunal which determined the area and its surrounds are relatively rich in Aboriginal sites.
[81]The Tribunal has found on a number of occasions that the term ‘site rich’ is not a particularly helpful lens through which to view the issues that need to be determined in an inquiry such as this. To the extent that ‘site rich’ has been used in previous decisions, it has reflected an evidentiary conclusion about the existence of areas or sites of particular significance and the likelihood of interference (see Lungunan v Geotech International at [43]; Campbell v Murchison Metals at [55]). The central issue remains whether the grant of the licence is likely to interfere with areas or sites of particular significance. The nature or distribution of the areas or sites may have a bearing on the risk of interference. However, the evidence must establish the existence of areas or sites likely to be affected by the grant of the licence. It is not enough to simply assert an area is ‘site rich’ or provide reasons why sites that may exist in a given area have not been identified.
[82]In the circumstances, it is not appropriate to draw any conclusions from the Tribunal’s comments in Wurrunmurra v Duffield regarding Fitzroy Crossing and the surrounding region. Those comments were merely an observation that the Tribunal’s findings were consistent with decisions made in other objection inquiries and demonstrated the broader significance of Fitzroy Crossing and surrounding areas. In my view, they do not have any particular bearing on the likelihood of interference with areas and sites identified in this matter. However, I have taken into account the nature and number of those areas and sites for the purposes of determining the risk of interference and deciding whether the site protection regime under Aboriginal Heritage Act is likely to sufficiently mitigate that risk.
(v) Is there a real risk of interference in the circumstances?
[83]On the basis of Mr Brooking’s evidence, and the evidence given to and findings made by the Tribunal in the previous decisions involving this area, I find that Gunbi is an area to which access is restricted under traditional law and custom and for which permission is required. I also find that certain exploration activities have the potential to damage or disturb Turtle Hole, and any burial sites that exist within the licence.
[84]The State argues interference is unlikely because Mings is aware of the existence of these places, if for no other reason than they have been the subject of evidence in this inquiry, and of its legal obligations in respect of them. However, I note that Mings is presently of the view that Gunbi only refers to the site noted on the register maintained by the DAA and that it is outside the proposed licence area. As set out earlier in this decision, I accept Gunbi is much larger than the site recorded on the DAA Register. While I accept Mings understands its obligations, the nature of the Gunbi area may render it difficult for Mings to meet those obligations unless it engages in close consultation with the Bunuba people. The same may be said in relation to burial sites on the licence, which may not be readily identifiable by non-Bunuba people.
[85]The State also contends the area has been subject to prior mineral exploration and possibly mining activity. While I am entitled to take into account the existence of previous mining tenure, it is difficult to say what extent any previous exploration or mining activity has had on this licence without evidence of that activity (see WF v Marford Group at [59]). Though it is possible to infer exploration and mining activity has taken place in the past, it does not necessarily follow that areas or sites of particular significance to the native title holders have in fact been disturbed as a result of that activity. Nor can I infer, from the available evidence, that if they have been disturbed, those places have lost their traditional significance or that further disturbance would not constitute interference (see Weld Range Metals v Western Australia at [295]; Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]).
[86]The State also notes the area is largely covered by Indigenous held pastoral leases. Although the Tribunal has previously found the existence of pastoral leases may be relevant to the issue of interference, it has also been observed that different considerations may apply to Indigenous held pastoral leases, such that the usual risk assessment factors may not automatically occur (see Wurrunmurra v Salmon at [52]-[53]). In this instance, it is conceivable the rights held under the pastoral leases are exercised in a way that is consistent with the relevant laws and customs of the Bunuba people.
[87]Mings states it is willing to consider excluding specific graticular blocks from the licence area where registered sites, places or areas can be identified. It also undertakes to avoid any areas or sites of significance if Bunuba #2 provide notice and coordinates for those areas. Bunuba #2 submit they are not in a position to provide coordinates for these purposes, as they wish to maintain control of information relating to sacred sites and it is not culturally appropriate to share this information with the proponent, particularly where no relationship exists. They also submit the precise locations of these areas are not readily available in the absence of heritage surveys.
[88]The State argues these submissions should not be accepted because they amount to the impermissible imposition of a right of veto over the issuing of the licence. The State argues Bunuba #2 can and should provide sufficient information to enable areas or sites of particular significance to be avoided by the proponent. I do not agree with this line of reasoning. Bunuba #2 have no obligation, in the absence of an agreement, to provide sufficient information to enable the proponent to avoid interference with areas or sites of particular significance. There are a variety of reasons why they may not wish or be able to disclose the exact location of significant areas or sites, including a lack of geospatial data, the existence of protocols regarding the dissemination of cultural knowledge and fears that disclosure might enable others to disturb or damage them. Such reasons and conduct do not amount to a veto.
[89]The issue I must determine is whether there is a real risk or chance the licence will interfere with areas or sites of particular significance to the native title holders. Although an objector bears no onus to demonstrate interference is likely to occur, there is an expectation it will identify any areas or sites of particular significance which are said to exist and may be affected by the proposal, as these are facts ‘peculiarly within the knowledge’ of that party (see Ward v Western Australia at [24]-[26], citing McDonald v Director-General of Social Security). In my view, Bunuba #2 have met that expectation and it now falls to me to determine the risk of interference.
[90]I accept Mings understands its legal obligations and will take steps to avoid interference with areas or sites of particular significance to the native title holders within the licence. These steps include giving notice to Bunuba #2 of any on-ground exploration it intends to undertake and to conduct heritage surveys in relation to proposed ground disturbing work along the lines of the RSHA. These steps are likely to mitigate the risk of interference with Turtle Hole and other sites of a similar nature. However, the proposed measures do not adequately address the risk of interference by way of Mings accessing and exploring on the Gunbi area within the licence. There is also a risk that activities which might otherwise be described as low impact exploration, including the use of vehicles, may interfere, albeit inadvertently, with Gunbi, and with burial sites in the licence.
[91]In the circumstances, I find there is a real risk of interference with areas or sites of particular significance to the native title holders, notwithstanding the proposed excision, unless Mings engages in further consultation and negotiation with Bunuba #2 about the grant of the licence and the conduct of its exploration program.
Conclusion
[92]For the reasons outlined above, I find the grant of the licence is likely to interfere with areas or sites of particular significance to the native title holders, including the people comprising Bunuba #2.
[93]No contention was made with respect to whether the grant of the licence is likely to interfere directly with community or social activities carried on by the native title holders (s 237(a) of the Act) or whether the licence is likely to involve, or create rights whose exercise is likely to involve major disturbance to land or waters (s 237(c) of the Act). As there is no material before me on these issues, I find the licence is unlikely to have those effects. In any case, my finding on the likelihood of interference with areas or sites of particular significance is sufficient for the objection to succeed.
Determination
[94]The determination of the Tribunal is that the act, namely the grant of exploration licence 04/2327 to Mings Mining Resources Pty Ltd, is not an act attracting the expedited procedure.
Helen Shurven
Member23 October 2015
APPENDIX 1: CONDITIONS AND ENDORSEMENTS ON GRANT OF LICENCE
Conditions
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.No interference with Geodetic Survey Station SSM-WH5 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation Park Reserve 46235.
Endorsements
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The Licensee [sic] attention is drawn to the provisions of the:
·Water Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway; and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) 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 the DoW.
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