Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo & Jabirr Jabirr Peoples/Western Australia/Kimberley Quarry Pty Ltd
[2008] NNTTA 118
•25 August 2008
NATIONAL NATIVE TITLE TRIBUNAL
Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo & Jabirr Jabirr Peoples/Western Australia/Kimberley Quarry Pty Ltd, [2008] NNTTA 118 (25 August 2008)
Application No: WO07/803
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo & Jabirr Jabirr Peoples (WC99/36) (native title party)
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The State of Western Australia (Government party)
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Kimberley Quarry Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 25 August 2008
Catchwords: 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 not attracted – expedited procedure does not apply
Legislation: Native Title Act1993 (Cth), ss 29, 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act1972 (WA)
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), The Hon CJ Sumner
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), Daniel O’Dea
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd, NNTT WO06/103 and WO06/197, [2007] NNTTA 29 (29 March 2007), The Hon CJ Sumner
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
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner
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
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Hearing date: 31 July 2008
Representative of the
native title party: Mr Robert Houston, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources
Representative of the
grantee party: Mr David Young
REASONS FOR DETERMINATION
On 25 April 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1624 (‘the proposed licence’) to Kimberley Quarry Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by section 31 of the Act).
The proposed licence comprises an area of 71.76 square kilometres located 45 kilometres north of Broome in the Shire of Broome. It is 100 per cent overlapped by the registered native title claim of the Goolarabooloo and Jabirr Jabirr Peoples (WC99/36 – registered from 29 October 1999).
On 24 August 2007, Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo and Jabirr Jabirr Peoples (‘the native title party’) made an expedited procedure objection application to the Tribunal.
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 status conference on 23 April 2008, following a number of conferences and four requests to extend direction compliance dates in an attempt to negotiate a heritage protection agreement, the native title party representative informed the Tribunal that one of the persons comprising the applicant, Mr Joseph Roe, was unlikely to consent to heritage clearance (i.e., consent to the grantee party exploring the proposed licence) and consequently was unlikely to sign any heritage agreement for the area of the proposed licence. Parties agreed that the matter should proceed to inquiry and requested that directions be amended a fifth time to allow the parties to seek evidence and prepare contentions. At a listing hearing on 12 June 2008, the native title party representative informed the Tribunal that the native title party had not yet lodged its submissions and that Mr Roe may choose to personally represent the native title party. On 17 June 2008, after considering whether it was appropriate to dismiss the application pursuant to s 148(b) of the Act, the Tribunal amended directions to allow further time for the native title party to lodge its submissions. On 30 June 2008, following a request from the grantee party, directions were amended for the final time.
The Government party lodged its contentions and evidence on 23 April 2008, the native party on 24 and 25 June 2008 and the grantee party on 21 July 2008.
Following an adjourned listing hearing on 31 July 2008, the parties confirmed 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).
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’), the Tribunal considered the applicable legal principles (at [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 [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that Standard Condition (2) to be imposed on the proposed licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. 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) rejected an appeal by the native title party from the Tribunal’s decision in Maitland Parker. That decision was appealed to the Full Federal Court and the appeal dismissed (Parker v State of Western Australia [2008] FCAFC 23).
Evidence in relation to the proposed act
Government party documentation establishes the underlying tenure of the proposed licence to be as follows:
- Vacant Crown Land No. 259 (99.6 per cent overlap)
- Department of Environment and Conservation Proposed Conservation Park 145 (22.9 per cent overlap)
- Two Road Reserves (totalling less than 0.2 per cent overlap)
The documentation also notes there are no Aboriginal communities within or adjacent to the proposed licence.
Mapping provided by the Tribunal’s geospatial unit shows that the proposed licence is accessible via a gazetted unsealed road (Broome to Cape Leveque) approximately 45 kilometres north of Broome and locates six aboriginal communities in and around Broome.
Submissions provided by the Government party documentation show minimal recent exploration activity has occurred over the area of the proposed licence: two exploration licences were granted in June 1992 and forfeited in November 1993, overlapping at 5.9 and 7.4 per cent respectively; and one granted in April 2000 and surrendered in October 2001, overlapping at 18.2 per cent. The proposed licence was also 100 per cent overlapped by a Special Prospecting Authority SPA 3/06-7 AO, considered a low impact act pursuant to s 24LA of the Act for the sole purpose of airborne magnetic surveying, which expired in December 2007.
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 relate to Proposed Conservation Park 145 and detail the Department of Industry and Resources environment restrictions and approval requirements, including cleaning of vehicles and equipment, written notification and approval of proposed activities, access and movement of vehicles, rehabilitation and inspections (Conditions 5-9).
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; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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
Searches of the Department of Indigenous Affairs (‘DIA’) Register of Aboriginal Heritage Sites provided by the Government party reveal no registered Aboriginal sites under the Aboriginal Heritage Act1972 (WA) located within the area of the proposed licence. The searches and mapping provided by the Tribunal’s geospatial unit show numerous sites along the coast, approximately 7 kilometres from the westernmost edge of the proposed licence.
The native title party’s submissions include the affidavit of Joseph Roe (later affirmed 29 June 2008) made in the following terms:-
“AFFIDAVIT OF JOSEPH ROE
I, Joseph Roe of Lot 90, Lawrence Road, Coconut Wells solemnly and sincerely declare and affirm THAT:
1. My name is Joseph Roe. I was born at Broome Hospital on 24 April 1966.
2. I am the sole named applicant for the Goolarabooloo/Jabirr Jabirr Native Title Determination Application (WC 99/36) and the senior law boss for the Northern Tradition.
3. My father is Johnny Roe who was a Yawuru man. My mother is Teresa Roe who is a Jabbir Jabbir/Goolarabooloo woman. She was born in 1932 and is the spirit child of an old woman named Gnabi from Bindingangum (Yellow River) near Manari in Jabirr Jabirr country. She was born in the bush at Waterbank Station.
4. My maternal grandfather, Paddy Roe, was the boss for both lores around Broome – the southern tradition and northern tradition and the senior traditional custodian of Jabirr Jabirr country, Ngumbal country and Djugan country. There is a song cycle that runs from One Arm Point to Bidyadanga which makes up the northern tradition.
5. As law boss for the northern tradition, I protect sites all up and down the coast including the area covered by the exploration tenement. There are some parts of the country where I can go but where other people can’t go. Even my sons can’t go to some of these places because they aren’t at that stage in their lives. When they get a certain level of knowledge about culture and law they can go to these p1aces.
6. I know the country which includes the exploration tenement very well. It is just inland from Quondong Point, which is about 20km from where I live. The song line runs straight through the area of the tenement.
7. I am aware of the activities which the grantee party could perform under the terms of the exploration licence, if granted.
Interference with community and social life
8. The exploration area is on Goolarabooloo country
9. When I found out about Dave Young’s tenement application I invited him to have a cup of tea to talk about it but he never came. He’s been pushing Nykina people around in their country for ages. He should have come and spoken to me about his tenement application earlier and I could have told him where he could and couldn’t go. I have subsequently spoken to him on 2 or 3 occasions about this area of land and made it clear that no-one can go there.
10. He flew a helicopter into that area and landed without talking to me or DOIR or anything first. If he comes and talks to us we can tell him where he can and can’t go. But he can’t go to the tenement area as those rocks are too important. All rock is put there for a reason and the song cycle depends on those rocks. Only I as a traditional owner and law boss for this country can determine what rocks can be used for what purpose.
11. We cut timber and boomerangs in this area. You only get that really hard flint in a couple of places and this place where the exploration tenement is located is one of them. This kind of stone is important for our ceremonies and law. Stone from this area has been traded for thousands of years and you can find it in various places all around Australia. We have found green granite around the area of the exploration tenement which would have been traded for that stone.
12. We take young people there to teach them about law and culture. I need to teach them about this fellow who followed the songline. Those stones belong to that fellow.
13. We have to look after this country. As a senior lawman I am under an obligation to look after the exploration tenement area. We protect our sites and meeting places, we hunt and collect sustenance from around here. We hunt bush turkey and wild cat in this area and take our young people here to teach them the law.
14. My family and I, as the Goolarabooloo people, also run a cultural heritage trail called the Lurujarri Dreaming Trail. This trail follows the coast 80 kilometres north of Broome from Minarriny (Coulumb Point) to Minyirr (Gantheume Point) and runs close to the tenement area. It traces part of the song line that maintains the living memory of people who have been here for thousands of years. We visit traditional hunting, fishing and camping places and teach people about the Dreamtime stories of the trail, the names and uses of plants and the significance of areas and sacred sites. This educational trail is an important aspect of keeping the traditional law and culture of this area alive.
Interference with sites of particular significance
15. There are very significant places in the area of the exploration tenement. There are a lot of sites all up and down the song line which passes straight through the tenement area. The song line is like a vein that goes underground and then comes back to the surface. This vein goes underground at the coast and then comes back to the surface in the tenement area.
16. There is one being who has travelled through this country since dreamtime or Bugardigardi. He has a name but I can’t tell. If people want to know more then they have to come and talk to me on the law ground. He’s been putting things in the country that belong to the country since dreamtime or Bugardigardi. . The song line follows the path that this fellow has taken. I know all the sites up and down the country which are part of this song line. There are areas that people cannot go to - the area of the tenement is one of them, both inside, in the bush and outside, on the reef.
17. Everyone in this country knows that place, Jajal, near Quondong Point. You can find this information in the Terrex Report. This report was written because there was a mining company that wanted to mine sand on Goolarabooloo country but weren’t allowed to because of the significance of the area they wanted to go. The song cycle is well documented in this report.
Major disturbance to land or waters
18. There is a copy of a report that the state has which documents the song line. Nick Green and Peter Driscoll are the consultants who have been working on this and we have had discussions with the state and mining companies about the song line and its significance. The reports should all show that there are rock structures that are connected to the song cycle that runs straight through the tenement area. We are working on a structure plan where we are setting aside areas for quarrying work and resource development. This area is not one of them.
19. Everyone has been trying to get this patch of earth over the years —the Yanama brothers in the 1970s and the Garsten brothers in the 1980s. But they have never been able to get there because of the area’s significance.
20. If people go to some of these [sic] area without talking to us bad things will happen and people will get hurt. Garsten went there in the 80s and his son fell of the back of a beach buggy and lost the use of his arm. Bob Lawrence dynamited rocks all around that coast including Jalgajal stone and one of his sons tipped over whilst driving and became a paraplegic. Some of that mob that looks after some of that country had to leave because of what Bob Lawrence did. Bad things can happen to us as well.
21. Companies need to come and talk to Goolarabooloo people first before they go on our country. I am happy to sit down and have a cup of tea and a chat with people who want to come here. This is the way it has always been and the way it should continue to be.”
The evidence of Mr Roe is uncontested by the parties and I accept it. Whilst not the sole applicant for the native title party’s claim, I accept that as one of the two persons comprising the applicant and senior law boss for the area of the proposed licence, he has the highest authority to speak on behalf of the native title party for this matter.
Throughout the Tribunal conferences, the grantee party advised its intention to undertake some minimal drilling work to ascertain whether the area was viable for further exploration or mining. The grantee party submitted the following unsigned statement on 21 July 2008:
“Response to Joseph Roe’s Affidavit;
1. When Joseph Roe invited me for a chat and a cup of tea it took a while to get a mutually agreeable time. We ended up having a meeting on Tuesday 19th of February 2008 at 8.30am in Carol Martins office on Barker St in Broome. This meeting was also attended by Jim Sweet as another Kimberley Quarries representative.
2. In this meeting Jim and I made it clear that if there were such strong cultural issues relating to the tenement E04/1624 we would not pursue the matte any further.
3. Joseph told us that he had a gravel lease in the area further north, where he planned to sell gravel for the upgrade of the Cape Leveque Rd.
4. On Wednesday 20 February 2008 I rang Joseph Roe and asked him if he would give us some guarantee that no one including him self will mine in the tenement area and if so we would not pursue the tenement. His reply was that it is his country and he owns every thing above and below the ground. He will do what he wants with his rock when he wants.
5. Kimberley Quarries was advised by the Department of Industry and Resources that the area in question has previously been under an exploration lease. We were informed that there were no significant sites listed in the tenement area.
6. Kimberley Quarries maintains that it wishes to protect the heritage of the people and the area in question. If we were granted the tenement our exploration would be very minor and would leave nearly no trace of our workings. If the resource was proved insufficient then that would be the end of the matter. If it was proven and the resource called for then there would be a lot more discussions with Joseph Roe regarding anything ever proceeding in the area.
7. With regards to Joseph Roe’s statement that I have been pushing the Nykina people around, I have never met or talked to the Nykina people before this statement.”
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 them are likely to (in the sense of there being a real risk) interfere with the community or social activities of the native title party) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23])). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (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, ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences.
The evidence establishes that some exploration activity has occurred in the area over the years. However the nature and extent of this activity, which is not of a large scale, does not suggest that it will have interfered with the native title party’s community or social activities to an appreciable extent. The evidence of Mr Roe (paras 11-13) establishes that members of the native title party, including Mr Roe, still enjoy access to the area of the proposed licence. The principal issue under s 237(a) is whether the extent of those community or social activities is such that exploration is likely to interfere with them. In this case the evidence is that the native title party hunt, gather, take resources to manufacture traditional items and to use in traditional practices, and teach young people aspects of traditional knowledge within the area of the proposed licence. In particular, the evidence refers to “really hard flint” used by the native title party which is available in “only… a couple of places and this place where the exploration tenement is located is one of them. This kind of stone is important for our ceremonies and law” (para 11). However the information on the frequency of the visits or numbers of persons involved in the activities described is limited. Nonetheless, the area of the proposed licence and its surrounds is predominantly vacant crown land, is in close proximity to Broome and six Aboriginal communities, and is easily accessible via unsealed gazetted road, which could support an inference that the community or social activities are of a frequent or intensive nature (see Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), The Hon CJ Sumner at [20] and Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd, NNTT WO06/103 and WO06/197, [2007] NNTTA 29 (29 March 2007), The Hon CJ Sumner at [20] - [24]).
The Tribunal must also have regard to the fact that the grantee party’s access to the area would be limited to the area in which exploration is taking place and temporary. While the total area of the proposed licence will be of a significant size (71.76 square kilometres) intensive ground disturbing exploration will only occur at any one time over a small area. Further, the area of the native title party’s claim is approximately 2,322 square kilometres, much larger than the proposed licence area thus making it less likely that exploration on the proposed licence will impact on community and social activities, which I can infer are likely to be carried out over a broader area than that of the proposed licence (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])). However, this is not an inevitable finding (Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra’ at [19]-[23])).
On the balance of the evidence before me, I cannot find that community or social activities are likely to be interfered with pursuant to s 237(a) of the Act. Nonetheless, the “hard flint” used by the native title party in its ceremonies and law and “traded for thousands of years” is a site of particular significance to the native title party pursuant to s 237(b) of the Act and is dealt with below.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at p 223) that the very thought of intensive exploration activities could interfere with ‘community life’, I adopt the findings in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interferance with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Sites of particular significance (s 237(b))
The 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. There are no sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance 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 Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The evidence of Mr Roe is not contested. It establishes the following facts which support a finding that the area of the proposed licence is an area of particular significance in accordance with the native title party’s traditions and contains restricted sites, also of particular significance to the native title party:-
The area of the proposed licence is part of a song line “that runs from One Arm Point to Bidyadanga which makes up the northern tradition” for the native title party and “runs straight through the area of the tenement”. Mr Roe states that the song line “maintains the living memory of people who have been here for thousands of years.” (para 4, 6 and 14)
“The song line is like a vein that … goes underground at the coast and then comes back to the surface in the tenement area”. Mr Roe states that “I know all the sites up and down the country which are part of this song line. There are areas that people cannot go to - the area of the tenement is one of them….. [T]here are rock structures that are connected to the song cycle that runs straight through the tenement area.” (paras 15-16 and 18)
“… the song cycle depends on those rocks” and according to the native title party, the grantee party and other explorers “can’t go to the tenement area as those rocks are too important….” (paras 9-10)
The area of the proposed licence and the rocks contained therein are more significant than other areas within the native title party’s claim. Mr Roe states “We are working on a structure plan where we are setting aside areas for quarrying work and resource development. This area is not one of them.” (para 18)
“You only get that really hard flint in a couple of places and this place where the exploration tenement is located is one of them. This kind of stone is important for our ceremonies and law. Stone from this area has been traded for thousands of years and you can find it in various places all around Australia. We have found green granite around the area of the exploration tenement which would have been traded for that stone.” (para 11)
There are “very significant places in the area of the exploration tenement.” (para 15)
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, 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. The Government party relies on ss 5, 17 and 18 of the Aboriginal Heritage Act 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 Aboriginal Heritage Act has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]–[38], [40]–[41]. While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra at [26]–[35].)
There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the Aboriginal Heritage Act. The fact that there were negotiations (albeit ultimately unsuccessful) about a heritage agreement suggests that the grantee party is aware of and will comply with the Aboriginal Heritage Act. The grantee party also states in its submission that “[i]f we were granted the tenement our exploration would be very minor and would leave nearly no trace of our workings…. If it was proven and the resource called for then there would be a lot more discussions with Joseph Roe regarding anything ever proceeding in the area” (para 6).
However, even taking these factors into account, I am of the view that this is the type of case where the normal negotiations mandated by the Act should take place to avoid the likelihood of interference with the identified area and sites of particular significance within the proposed licence. There is no doubt that the area of the proposed licence is of special importance to the native title party. The Tribunal has found that the protective regime, based on the Aboriginal Heritage Act, will normally be sufficient to make interference unlikely but each case must be considered on its own facts, taking into account the nature of any sites, whether the area is ‘site rich’, whether there is an area of particular significance and the nature of such an area and the intentions of the grantee party (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), Daniel O’Dea at [81]-[91] and the cases cited therein). In that matter, the Tribunal found that although there were sites of particular significance in the area of the tenement the Aboriginal Heritage Act was likely to be effective in preventing interference with them because of the extensive evidence of the intentions of the grantee party. In this matter however, the grantee party has provided no work programme of its intentions other than statements at Tribunal conferences that minor drilling work would be undertaken and the provision of an unsigned statement that minimal disturbance will occur initially with further disturbance should the resource prove viable. Despite a statement that consultation with the native title party will occur at that stage, to date there is no agreed consultation process between the parties. Given the lack of evidence about the grantee party’s intentions, I must assume that, should the proposed licence be granted, the grantee party will exercise in full the rights permitted to it under the Mining Act 1978. Even if the grantee party’s exploration does not extend beyond what it considers to be minimal disturbance, the evidence provided by the native title party suggests the area and sites of significance identified by the native title party are likely to be interfered with should the grantee party so much as enter the proposed licence.
Accordingly, taking into account the nature of the area and sites of particular significance identified by the native title party, as well as the activities proposed by the grantee party, I find that there is likely to be interference as a result of the grant of the proposed licence.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1624 to Kimberley Quarry Pty Ltd is not an act attracting the expedited procedure.
Neville MacPherson
Member
25 August 2008
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