Johnson Taylor and Others on behalf of Njamal/Western Australia/Duketon Consolidated Pty Ltd
[2009] NNTTA 58
•18 June 2009
NATIONAL NATIVE TITLE TRIBUNAL
Johnson Taylor and Others on behalf of Njamal/Western Australia/Duketon Consolidated Pty Ltd, [2009] NNTTA 58 (18 June 2009)
Application No: WO08/1132
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
Johnson Taylor and Others on behalf of Njamal – (WC99/8) (native title party)
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The State of Western Australia (Government party)
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Duketon Consolidated Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 18 June 2009
Native title – future act – 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 – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109(3) 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18, 62
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd, NNTT WO04/359), [2005] NNTTA 93 (13 December 2005), Hon CJ Sumner
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner
Representative of the
native title party: Mr Colin McKellar, Pilbara Native Title Service
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Mr Michael Giles, South Boulder Mines Ltd
REASONS FOR DETERMINATION
On 27 August 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E45/2956 (‘the proposed licence’/’the subject area’) to Duketon Consolidated Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 223.88 square kilometres located 16 kilometres east of Marble Bar, in the Shire of East Pilbara. It is 100 per cent overlapped by the Njamal native title claim (WC99/8– registered from 3 June 1999). No other native title claims overlap the proposed licence.
On 9 December 2008, Johnson Taylor and Others on behalf of Njamal (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 13 January 2009, Deputy President Sumner was appointed Member for the purposes of the conduct of the Inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month 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.
At an adjourned preliminary conference on 10 February 2009, the grantee party requested the matter proceed to inquiry on the basis that the grantee party was prepared to enter into the Regional Standard Heritage Agreement (‘RSHA’) with the native title party. The matter proceeded to inquiry and one subsequent direction amendment was made.
The Government party lodged its contentions and evidence on 6 and 17 April 2009, and the native title party on 12 May 2009. The grantee party indicated by email dated 14 May 2009 that it would rely on the evidence submitted by the Government party.
At a listing hearing on 21 May 2009, parties reported that all contentions and evidence had been lodged and requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).
On 2 June 2009, I was appointed by the President of the Tribunal as the Member for the purposes of the conduct of the inquiry.
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340)
Evidence in relation to the proposed act
Government party documentation establishes the following underlying land tenure on the proposed licence:
Eginbah pastoral lease 3114/1244 (51.3 per cent overlap);
Corunna Downs pastoral lease 3114/745 (9.4 per cent overlap);
Crown Reserves CR 25354, 13677-13679, 17139, 19795, 12761 and 2906 for Recreation, Timber, Water and Common (total 10.3 per cent overlap);
Crown Reserve CR 7080 Public Utility and Stopping Place for Travellers (25 per cent overlap);
Crown Reserve CR 28380 Native Ceremonial Grounds (less than 0.1 per cent overlap);
Private Land 45673/1 (1.6 per cent);
Vacant Crown Land (less than 0.1 per cent overlap); and
Road Reserves (less than 1 per cent overlap).
Two historical leases are also said to overlap the subject area by a total of 63 per cent, however this appears to overlay tenure referred to above.
Documentation provided by the Department of Mines and Petroleum establishes the Aboriginal communities of Pipunya and Gooda Binya to be approximately 6.1 kilometres and 7 kilometres respectively west of the western boundary of the proposed licence.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals nine sites registered under the Aboriginal Heritage Act 1972 (WA) overlapping the proposed licence as follows:
Site ID 11093 – Limestone Station (engraving – permanent register, open access, no restrictions);
Site ID 11096 – Moolyella (painting – permanent register, open access, no restrictions);
Site ID 11097 – Moolyella Mining Centre (painting – permanent register, open access, no restrictions);
Site ID 11098 – Tadjibanna (painting, engraving, artefacts/scatter – permanent register, open access, no restrictions);
Site ID 11100 – Marble Bar (engraving – permanent register, open access, no restrictions);
Site ID 11956 – Moolyella (ceremonial, skeletal material/burial – lodged register, closed access, no restrictions);
Site ID 15700 – Marble Bar Aerodrome (grinding patches/grooves – permanent register, open access, no restrictions);
Site ID 15701 – Brockman Creek (grinding patches/grooves – permanent register, open access, no restrictions); and
Site ID 15702 – Marble Bar Aerodrome Ne (sic) (grinding patches/grooves – permanent register, open access, no restrictions).
Government party documentation indicates two live exploration licences – E45/1249 and E45/1869 – over the proposed licence, with encroachments of 0.1 per cent and 0.8 per cent respectively. Two pending exploration licences – E45/2273 and E45/3172 – overlap the proposed licence by 18.2 per cent and 80 per cent respectively, and one pending mining lease – M45/1081 – has an encroachment of 2.3 per cent. The grant of the proposed licence does not include the land the subject of granted exploration licence E45/1869 nor does it include the pending exploration licence E45/2273, unless the aforementioned licences expire, are surrendered or are forfeited, in which case these areas may be included subject to certain provisions (DMP Endorsement 3).
There has been extensive interest in the area of the proposed licence dating from 1899, including previous exploration and mining activity.
Three previously granted tenements – E45/1923 (WO97/415), E45/1968 (WO98/387) and E45/1835 (WO98/1109) – have been the subject of objections by the native title party’s pre-combination applicants. In relation to WO98/387 and WO98/1109, agreements were reached and the objections withdrawn. The remaining objection was finalised through a consent determination that the expedited procedure does not apply.
Three withdrawn tenements – E45/1863 (WO97/415), E45/1836 (WO97/536) and E45/2361 (WO03/542) – have also been the subject of objections by the native title party or its pre-combination applicants. In the case of WO97/415 and WO97/536, the tenement applications were withdrawn following finalisation of the objections by way of consent determination that the expedited procedure does not apply.
One pending exploration licence – E45/2273 (WO03/206) – was also the subject of an objection by the native title party which was resolved by way of consent determination that the expedited procedure does not apply.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] conditions 1-4). Additional conditions imposed require that the pastoral lessee be notified of the grant of the licences and of certain exploration activities (conditions 5-6).
In addition, the grant of the proposed licence will be subject to the following conditions:
Prior written consent of the Minister responsible for the Mining Act 1978 to be obtained before any exploration activities are commenced on Recreation Reserve 25354, Water Reserves 17139, 19795, 12761, Timber Reserves 13679, 13677, 13678, Native Ceremonial Grounds Reserve 28380 and Public Utility & Stopping Place for Travellers Reserve 7080 (condition 7);
No interference with Geodetic Survey Stations SSM-Marble Bar 4, 5, 8, 31, 73, 74, 135, 169 to 175, SSM-Mab 113, 126, 127, 166 to 168, 176 to 178 and SSM-ZP 32 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 8); and
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface (condition 9).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder;
The Licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained; and
The grant of this licence does not include the land the subject of prior Exploration Licences 45/1869 and 45/2273. If the prior licence expires, is surrendered or is forfeited, that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
Evidence provided by the native title party
The native title party provided an undated one page hand written note of a conversation with Kurtiri, described as an Elder in the native title party’s contentions. The conversation took place on or around 28 April 2009 and was recorded by ‘Njamal person Darren Geary’:
‘Kurtiri: Hundreds of people from everywhere all working, plenty of Natives born there at that time, also plenty of Natives buried there. And lots of young men had been inisionated [initiated] there. It was a main Lore Ground for natives from all over the Pilbara.
Plenty of Njamal people been there from Moolyella[.] Lot of native had to work for tin so they could move to Bluebar (another big camp)[.] [T]here was 3 big camp out there and them camps was made up of lots of different tribes lots of people kept going back to these camps for a little $ and because they waiting to see what everyone was going to do. (where to now, other Natives do we belong), Ngarla, Njamal, and others went working on stations[.] Plenty of sacred sites (man’s top lore) all around that area (Moolyella).’
Although not a sworn affidavit, the conversation/statement provided by Kurtiri is accepted by the Tribunal as evidence. The other parties did not object to the form of evidence and I have taken into account that the Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence (s 109(3)). The evidence is uncontested by the parties and I accept it. Although Kurtiri is not a named applicant to the native title party’s claim application, he is described as an Elder and I accept he has authority to speak on behalf of the native title party for the area of the proposed licence.
Additional evidence of the native title party includes:
Transcript of episode dated 1 April 2005 from ABC television program, ‘Message Stick’, with an interview of the late Peter Coppin in relation to the Aboriginal pastoral workers strike of 1946 and tin mining as a source of income during the strike;
Extract from ‘Aboriginal Australians: Black Responses to White Dominance, 1788-2001’ by Richard Broome (published 2002);
Internet sourced excerpt from Department of Planning and Infrastructure titled ‘A Snapshot of the Pilbara’;
Five photocopied photographs relating to tin mining by Aboriginals in the late 1920s; three of which are at Moolyella;
Extracts from ‘Been a Lot of Change but the Feeling is Still There: A book about the pain of being taken away and the celebration of rediscovering family’ (published 2002 by Wangka Maya Pilbara Aboriginal Language Centre);
Extracts from ‘Bee Hill River Man – Kandulangu-bidi – Memories of Jack McPhee’ by Jack McPhee and Patricia Konigsberg (published 1994 by Magabala Books Aboriginal Corporation); and
Article titled ‘Yandying for Tin at Moolyella’ by John K Ewers (published in Walkabout, 1 May 1935).
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 ([23])) (‘Smith’). 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 451 ([26])). The assessment is also contextual, taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. Deputy President Sumner has previously found and I accept that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at 454-455 [37]).
The native title party’s contentions (para 4) say that the proposed licence covers the region of the Moolyella tin fields in which ‘[h]undreds of Njamal people yandied for tin’ from the late 19th century through to the 1960s or 1970s. The evidence of the native title party focuses predominately on the historical activities of members of the native title party associated with tin panning in the tin fields during the early to mid twentieth century. These activities took place many years ago and there is no evidence to suggest that such activities continue to occur today. Even if evidence had been provided to suggest that activities relating to tin panning are carried out by the native title party on a contemporary basis, the Tribunal has previously found that ‘work’ does not constitute a social or community activity for the purposes of s 237(a), as it does not arise from, and is not related to, the claimed native title rights and interests (Walley at 442-447 [13]-[14]; Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner (at [12])).
The native title party has not provided any evidence to suggest the type of community and social activities that are currently conducted over the area of the proposed licence, nor is there any reference to the frequency of which those activities might occur, with the exception of the statement that ‘the region’ around the Moolyella tin fields ‘continues to be visited by Njamal people to this day’ (S of C para 7). The evidence, however, does not provide any indication as to the frequency and intensity of these visits.
The Aboriginal communities of Pipunya and Gooda Binya are located a relatively short distance from the area of the proposed licence. The native title party says that, as a consequence of the Moolyella tin fields, a number of almost exclusive Aboriginal communities developed until the 1970s and 1980s (S of C para 7); however, no further evidence is provided as to the location of these communities. Additionally, no reference is made as to the type of social and community activities, nor the frequency with which they are conducted in and around the two communities, which might support a finding that exploration activity will directly interfere with community and social activities in a substantial or more than trivial way.
Kurtiri refers to a ‘main Lore Ground for Natives from all over the Pilbara’ in which ‘many young men’ have been initiated. The evidence is rather general in nature and does not specifically identify the ‘Lore Ground’ (hereafter referred as ‘Law Ground’ for the purposes of consistency with the native title party’s statement of contentions) as being within the area of the proposed licence; however, Government party documentation refers to a Native Ceremonial Grounds Reserve within the area of the proposed licence. Such Reserve is located near Moolyella, on the northern boundary of the proposed licence, and lies predominately outside the subject area with an encroachment point of less than 0.1 per cent. I am of the view that this latter Reserve is the main Law Ground to which Kurtiri refers; however, the general nature of the evidence does not lend itself to a conclusion that the Law Ground is in current use by the native title party for such community or social activities. Therefore, I cannot find that community or social activities on the Law Ground are likely to be interfered with pursuant to s 237(a) of the Act. Nonetheless, the area of the Law Ground is a site of significance to the native title party pursuant to s 237(b) of the Act and is dealt with below.
The evidence establishes that substantial activity, including exploration, has occurred in the proposed licence area and vicinity over the past one hundred years. This activity has included an extensive list of defunct licences under the old Mining Act 1904 (WA), such as dredging and mineral claims, machinery areas, machinery leases, residential leases, tailings leases, water rights and miner’s homestead leases. Some current exploration activity is evidenced and the concerns of the native title party about previous activity are apparent from a number of objections lodged in relation to tenements applied for in their claimed country. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect such activities (Walley at 441-442 [12]). In this case, more than 60 per cent of the area of the proposed licence is over pastoral leases and it is likely that pastoral activities have interfered in some way with any community and social activities that may be carried out by the native title party. As noted previously, the area of land the subject of the proposed licence has a long history of mining activities. Given the extent to which these various activities have likely already impacted upon any community and social activities that may be conducted by the native title party, I find that there is unlikely to be any substantial direct interference with them. While I accept that exploration activities can be detrimental to current Aboriginal community activities, there is no evidence of a prior detrimental effect on community and social activities in this area from recent exploration activity.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place as significant ground disturbing exploration will only occur at any one time over a small area. Government party documentation reveals that the size of the proposed licence is 223.88 square kilometres. The area of the Njamal claim is approximately 33,611.782 square kilometres, much larger than the area of the proposed licence, thus making it less likely that exploration on the subject area will impact on any community and social activities of the native title party, as contemplated in s 237(a) of the Act, which I can infer are likely to be carried out over a broader area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (DP Sosso) (at [43]-[44])).
Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows nine sites, one of which is closed, within the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (most recently, in Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea (‘Butcher Cherel’) (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The native title party says the area of the proposed licence contains a large number of significant sites. Kurtiri notes that there are ‘[p]lenty of sacred sites (man’s top lore) all around’ the Moolyella area. The evidence provided by the native title party is limited with respect to this contention and I do not consider it sufficient to make a finding that the area of the proposed licence is rich in sites. The native title party’s contentions and supporting evidence focus predominately on the Moolyella tin fields and, to a lesser extent, a Law Ground at Moolyella.
The contentions of the native title party say that the Moolyella tin fields is a significant historical site to the native title party and it was one of the first Aboriginal owned and operated commercial enterprises in the Pilbara (S of C para 4). The native title party has submitted the following evidence to support the significance of the Moolyella tin fields:
Moolyella is described in an article published in 1935 as ‘probably the only industrial centre in Australia that is entirely in the hands of [A]borigines’ (‘Yandying for Tin at Moolyella’ in Walkabout 1 May 1935);
Kurtiri says that ‘plenty of Njamal people been there from Moolyella[.] Lot of Native had to work for tin so they could move to Bluebar (another big camp).’ Tribunal mapping locates Blue Bar Mine and Blue Bar Pool as approximately 25 kilometres south-west of the proposed licence;
Tin was used as a source of income for members of the native title party during the 1946 to 1949 Pilbara strike in which Aboriginal pastoral workers walked off the job for payment of fair wages and better working conditions (Peter Coppin, speaking on ‘Message Stick’; and Aboriginal Australians: black responses to white dominance, p 142);
Approximately 300 Aboriginal people were engaged in tin panning in the Pilbara in 1906 (‘A Snapshot of the Pilbara’, sourced from Department of Planning and Infrastructure website); and
Jack McPhee’s mother and adoptive father yandied for tin at Moolyella where ‘tin was plentiful those days at Moolyella, you can pick it up just like that, anywhere and everywhere around Moolyella’ (Bee Hill River Man – Kandulangu-bidi – Memories of Jack McPhee by Jack McPhee and Patricia Konigsberg, p 19).
Evidence of the native title party establishes that the Moolyella tin fields is a place where members of the native title party were born, grew up and some have been buried there. Kurtiri says that ‘plenty of Natives born there at that time, also plenty of Natives buried there’. Athough the evidence is not specific as to where ‘there’ is, I believe I can safely infer Kurtiri is referring to Moolyella.
The native title party also contends that there is a ‘significant Law Ground’ at Moolyella (S of C para 10), and references page 12 of Kingsley Palmer and Clancy McKenna’s book Somewhere Between Black and White: the story of an Aboriginal Australian (published 1978) in support. The relevant section has not been tendered as evidence; however Kurtiri also notes that ceremonies were held at Moolyella. The evidence provided by Kurtiri is that there is a ‘main Lore Ground for Natives from all over the Pilbara’ and although the location of that Law Ground is not specified, I believe I can safely infer it is at Moolyella. The Reserve which is noted in the Government party’s documentation is located near Moolyella and I have previously established above that this is the Law Ground to which Kurtiri refers. One of the conditions that will be placed on the grant of the proposed licence is that, prior to the commencement of any exploration activity over the Native Ceremonial Grounds Reserve, the written consent of the Minister for DMP is required.
The evidence provided by the native title party in relation to sites is uncontested and I accept that it establishes the existence of two sites, namely, Moolyella and a Law Ground in the general area of the proposed exploration licence. The Tribunal has previously accepted documentary evidence in the absence of verification by affidavit from a member or members of the native title party to establish the presence of sites of particular significance to the native title party in accordance with their traditions (Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd, NNTT WO04/359), [2005] NNTTA 93 (13 December 2005), Hon CJ Sumner (at [25]-[26])).
The DIA site register identifies one closed site, ID 11956, located within the area of the proposed licence with the name Moolyella which is listed as a ceremonial, skeletal material/burial site. I believe I can safely infer that this is the Law Ground and burial site at Moolyella to which the native title party refers. Moolyella is also the name given to two other registered sites, both of which are recorded as paintings with open access. I am satisfied that Moolyella is a site of particular significance to the native title party in accordance with their traditions. I am entitled to give lesser weight to the remaining six sites on the DIA Register in the absence of evidence from the native title party explaining why each site is a special place to them.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). In Butcher Cherel (at [81]-[91]), Member O’Dea canvassed various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party, in particular matters, which I adopt for the purpose of this determination. In that matter, the Tribunal found the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party including its intention to conduct a heritage survey. It is a matter of fact, based on consideration of the evidence in each case, whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do, including in relation to the scope of exploration activities, site protection and consultation with the native title party.
In this case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the proposed licence. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA and the fact that it has signed a statutory declaration saying it has executed and forwarded a copy of the RSHA to the native title party’s representatives reveals an awareness of its obligations in this respect. The Government party has also placed a further condition that, if so requested by the native title party within ninety days of grant, the grantee party must execute a RSHA in its favour. I have no difficulty in accepting that the grantee party will act lawfully and in accordance with the AHA and I accept that heritage surveys will be conducted over the area via the RSHA.
It is my view that the evidence in this present matter does not exhibit ‘site rich’ characteristics to justify a finding that the regulatory regime will be inadequate. Some of the sites of particular significance referred to above are specific in type and location, but do not amount to establishing that the area is rich in sites. The grantee party is on notice of their existence, and of the native title party’s wishes, which will mean that, if they are interfered with, the defence in s 62 of the AHA will not be available to the grantee party.
I am satisfied that the presumption of regularity can apply in this case. There is no evidence that the grantee party has or will act contrary to the law, and particularly the regulatory regime dealing with the protection of Aboriginal sites based on the AHA. The native title party will have an option to enter into a RSHA, which I am satisfied will be sufficient to make interference with sites unlikely, including because of the consultation process it sets up.
Major disturbance to land and waters (s 237(c))
Lastly, the Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration 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 would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [74]-[79] and the cases cited therein).
In this matter, no contention is made by the native title party in relation to s 237(c) and there is no evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely. The area has been the subject of extensive exploration and mining activities over a very long period and about which there have been no complaint; the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4). I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E45/2956 to Duketon Consolidated Pty Ltd is an act attracting the expedited procedure.
Neville MacPherson
Member
18 June 2009
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