Keith Narrier and Others on behalf of Tjiwarl v Sammy Resources Pty Ltd and Another

[2015] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Keith Narrier and Others on behalf of Tjiwarl v Sammy Resources Pty Ltd and Another [2015] NNTTA 14 (2 April 2015)

Application No:         WO2014/0022

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

Keith Narrier and Others on behalf of Tjiwarl (WC2011/007) (native title party)

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The State of Western Australia (Government party)

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Sammy Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms H Shurven, Member

Place:  Perth
Date:  2 April 2015

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – expedited procedure not attracted

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32(3), 77, 109(1), 151, 155, 162(2), 237

Mining Act 1978 (WA), s 66

Aboriginal Heritage Act 1972 (WA), ss 7(1)(b), 18

Environmental Protection Act 1986 (WA)

Cases:FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)

John Walter Graham and Others on behalf of Ngadju v Dunstan Holdings Pty Ltd [2014] NNTTA 84 (‘Graham v Dunstan Holdings’)

Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (‘Tullock v Allarrow’)

Tullock v Western Australia (2011) 257 FLR 320 [2011] NNTTA 22 (‘Tullock v Western Australia’)

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)

Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/Western Australia/Zenith Minerals Ltd [2012] NNTTA 77 (‘MNR Aboriginal Corporation v Zenith’) 

Murray on behalf of the Yilka Native Title Claimants v Goldphyre WA Pty Ltd [2013] NNTTA 101 (‘Yilka v Goldphyre’)

Crowe v Western Australia (2008) 218 FLR 429; [2008] NNTTA 71 (‘Crowe v Western Australia’)

Ben Ward; Clarrie Smith and Ors v Western Australia and Others [1996] FCA 1452 (‘Ward v Western Australia’) 

Western Australia v Smith (2000) 163 FLR 32; [2000] NNTTA 239 (‘Western Australia v Smith’)

Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 ('Western Desert v Teck')

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 ('Yindjibarndi Aboriginal Corporation v FMG')

Representative of the     Mr Mike Allbrook, Central Desert Native Title Services Ltd

native title party:             Ms Tessa Herrmann, Central Desert Native Title Services Ltd

Representatives of the     Mr Nic Damnjanovic, State Solicitor’s Office
Government party:          Ms Bethany Conway, Department of Mines & Petroleum

Representative of the     Ms Stephanie Lee, McMahon Mining Title Services Pty Ltd
grantee party:                  
     
REASONS FOR DETERMINATION

1. The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E36/817 (‘the proposed licence’) to Sammy Resources Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the negotiations required by s 31 of the Act). The ‘notification day’ is specified in the notice as 11 September 2013 (see s 29(4)(a) of the Act).

2. The proposed licence is 14BL in size (approximately 42.6 square kilometres) and is located 73 kilometres north west of Leinster, in the Shire of Leonora, Western Australia.

3. The Tjiwarl native title claim (WC2011/007 – registered since 13 January 2012) wholly overlaps the proposed licence.

4. An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) within four months of the ‘notification day’ (see s 32(3) of the Act), which in this matter, was 13 January 2014. As explained by ss 32(3) and s 30(1)(a) and (b) of the Act, the objection may be made by:

   (a)any registered native title body corporate  (‘RNTBC’) in respect of the relevant land or waters who is either (i) registered as an RNTBC at three months after the notification day, or, (ii) if the RNTBC is registered after that three month period, the RNTBC has resulted from a claim that was registered before the end of three months from the notification day; or

   (b)any registered native title claimant in respect of the relevant land or waters who is registered at four months from the notification day, provided the claim was filed before the end of three months from the notification day.

5. On 10 January 2014, an expedited procedure objection application in relation to the proposed licence was lodged with the Tribunal by Keith Narrier and Others on behalf of the Tjiwarl Native Title Claim Group (‘the native title party’). The application was accepted by the Tribunal pursuant to s 77 of the Act on 23 January 2014.

6. At the preliminary conference held on 11 February 2014, the native title party and the grantee party indicated their intention to negotiate an agreement that would dispose of the objection by consent. Consequently, the matter was adjourned to allow negotiations to occur.  At a status conference on 16 July 2014, the Tribunal set directions and programmed this matter for inquiry as an agreement had not been reached.

7. On 20 August 2014, the Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party, as directed.

8. Following a request from the native title party to vary compliance dates, directions were amended by the Tribunal on 17 September 2014. In compliance with those directions, the native title party provided a statement of contentions on 1 October 2014 and an unsworn/unsigned affidavit of Mr Kado Rentan Eldred Allison Muir.  On 7 October 2014, the native title party sent to the Tribunal and all parties an affidavit by Mr Kado Rentan Eldred Allison Muir, affirmed on 7 October 2014, together with amended contentions dated 7 October 2014. The nature of the amendment in the contentions was minor, and the affirmed affidavit was substantially in the same form as the unsigned affidavit.  No party objected to the late provision of the affirmed affidavit, and as such I accepted the material.  Upon submission of these documents, the native title party requested that the contents of the affidavit be kept confidential and not be reproduced in the determination of the Tribunal. For the purposes of this determination I am agreeable to avoid, where possible, reproducing the contents of Mr Muir’s affidavit. However, I also note that I am obliged to set out the findings of fact upon which this determination is based and to identify the source of those factual findings (see Crowe v Western Australia at [35] and s 162(2) of the Act). As such, I have used discretion to ensure the contents of this affidavit have been kept confidential to the extent possible, while ensuring adequate disclosure to support the findings of this determination.

9. On 15 October 2014, the grantee party provided a statement of contentions. On 29 October 2014, the State Solicitor’s Office (‘SSO’) provided the Government party’s statement of contentions and, on 12 November 2014, the native title party provided a statement of contentions in reply.

10. On 12 November 2014, a request was made by the grantee party to submit contentions in reply to the native title party contentions in reply, in particular in relation to issues raised around the Regional Standard Heritage Agreement (‘RSHA’). A directions hearing was held on 18 November 2014 which was audio recorded and where parties were given the opportunity to ventilate the issue verbally. At the end of the hearing, parties agreed that all submissions and evidence had been provided, further directions were vacated and the matter proceeded to determination on the papers, as provided for in s 151 of the Act.

11. On 8 January 2015, the Tribunal provided parties with a copy of a map produced by the Tribunal’s Geospatial Unit to be used for the purposes of this determination. No party objected to its use.

Legal principles

1. Section 237 of the Act provides:

   A future act is an act attracting the expedited procedure if:                 

   (a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

2. In relation to the legal principles to be applied in this matter, I adopt those outlined by President Raelene Webb QC in Yindjibarndi Aboriginal Corporation v FMG (at [15]-[21]). These principles were recently endorsed by McKerracher J in the Federal Court decision of FMG Pilbara v Yindjibarndi Aboriginal Corporation.

Evidence in relation to the proposed act

1. The Government party provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; a report and plan from the Department of Aboriginal Affairs’ (‘DAA’) Sites Register; a copy of the tenement application; a copy of the proposed endorsements and conditions of grant; and a Tengraph quick appraisal.

2. The Tengraph quick appraisal submitted by the Government party details the land tenure, current and historical mining tenements, native title areas, relevant services, and other features within the proposed licence. Notable underlying tenure is:

   ·Pastoral Lease 3114/737 (Albion Downs) overlapping at 16.8 per cent;

   ·Pastoral Lease H859693 (Yakabindie) overlapping at 83.2 per cent

3. The proposed licence is overlapped by: one live miscellaneous licence, originally encroaching at 54 per cent, now overlapping at 0.7 per cent following a partial surrender in 1992; one live temporary reserve, overlapping 8.6 per cent; and five dead exploration licences in operation variously between 1996 and 2008, overlapping the proposed licence between 14.3 and 100 per cent.

4. The quick appraisal documents show the services affected in relation to this proposed licence include: four tracks; two fence lines; one symbolized yard; one well/bore; 20 non-perennial lakes; and two non-perennial minor watercourses.

5. DAA Sites Register documentation indicates there are no registered sites or other heritage places located on the proposed licence.

6. Material provided by the Government party does not indicate any Aboriginal communities within or in the vicinity of the proposed licence area. This is confirmed by the map produced by the Tribunal’s Geospatial Unit.

7. The draft Endorsement and Conditions Extract for the proposed licence indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Western Australia at [11]-[12]). The following additional conditions would also be imposed on the proposed licence:

   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:

   a.       the grant of the Licence; or

   b.       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.The rights of ingress to and egress from Miscellaneous Licence 36/60 being at all times preserved to the licensee and no interference with the purpose or installations to the licence.

   8.No interference with Geodetic Survey Station SSM-SIR SAMUEL 68 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

8. The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:

   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’s attention is drawn to the provisions of the:

   ·        Water Conservation Act, 1976

   ·        Rights in Water and Irrigation Act, 1914

   ·        Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   ·        Country Areas Water Supply Act, 1947

   · Water Agencies (Powers) Act 1984

   · Water Resources Legislation Amendment Act 2007

   4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

   5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances 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 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.

9. Government party contentions state (at 21) that it will also place the following condition (‘the proposed RSHA condition’) on the grant of the proposed licence:

   In respect of the area covered by the licence, if the Tjiwarl, being the applicants in Federal Court Application no. WAD 228/2011 (WC2011/007), send a request being sent by pre-paid post to the licensee’s or agent’s address, not more than ninety days after the grant of the this licence, the licensee shall within thirty days of the request execute in favour of the Tjiwarl the Regional Standard Heritage Agreement (RSHA) endorsed by peak industry groups.

Submissions of the native title party

1. Although the native title party’s objection application addressed each of the criteria in s 237 of the Act, the native title party states in its contentions that the objection is only pursued in relation to s 237(b) (NTP Contentions, paragraphs 1.3 – 1.4).

2. The submissions of the native title party include a statement of contentions and the affidavit of Mr Muir. Annexed to Mr Muir’s affidavit is a map showing the proposed licence and surrounding area produced by the native title party representative, the Central Desert Native Title Services.

3. Mr Muir states (at 1) that he is an initiated man - a wati - and has cultural authority to speak for the area of the proposed licence. Mr Muir also notes that he is a Tjarurru man, has family ties to the Martu people in the north and in other parts of the desert, and indicates (at 2-3) that he was shown a copy of the map of the proposed licence. As such, I accept he has authority to speak on behalf of the native title party for the country which is subject to the proposed licence.

4. The native title party submits:

   ·The proposed licence contains sites of particular significance, being those created by the tjukurrpa (at 6.1; Mr Muir’s affidavit at 4);

   ·Dreaming sites are present in the native title party claim area and the proposed licence which were created and left behind by the tjiinkuna/kunai tjukurrpa [respectively ‘a hunter’ and a ‘very important’ dreaming story] (at 6.1(a); Mr Muir’s affidavit at 4, 5 and 9-14);

   ·The sites within the proposed licence are linked to others within the claim area and wider desert. Interference with any one of these sites necessarily causes interference with a linked site (at 6.1(b); Mr Muir’s affidavit at 2, 4 and 6–14).

   ·Interference with tjukurrpa sites will result in severe consequences for the native title party including physical punishment, sickness and shame (at 6.1(c)(i)-(iii); Mr Muir’s affidavit at 12-14);

   ·Activities permitted under an exploration licence including drilling, creating roads and tracks and soil sampling, will cause interference with the tjiinkuna/kunai tjukurrpa (at 6.1(d)-(e); Mr Muir’s affidavit at 14-15);

   ·The locations of some sites are known only to certain native title claimants with the requisite cultural standing, knowledge and experience which creates a real risk of inadvertent interference by the activities of the grantee party (at 6.1-6.3);

   ·Interference with the tjukurrpa will result in the loss of important parts of the story (Mr Muir’s affidavit at 13-14);

   ·People visiting the proposed licence area should be guided by the native title party to avoid damage to significant sites and for safety reasons (Mr Muir’s affidavit at 15-16);

   ·The native title party have an obligation to maintain and protect sites of particular significance located within the proposed licence (at 3.19; Mr Muir’s affidavit at 2, 4, 12, 20 and 23-28);

   ·The nature and importance of the sites within the proposed licence is such that certain activities permitted will constitute interference pursuant to s 237(b) of the Act, but may not necessarily be prohibited under s 17 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) (at 5.4-5.13);

   ·Meaningful consultation and negotiation between the native title party and the grantee party are necessary to protect special sites located within the proposed licence (Mr Muir’s affidavit at 17); and

   ·Mr Muir believes a condition should be placed on the grant of the proposed licence prohibiting mining and exploration activities on areas of spiritual and cultural significance to the native title party (Mr Muir’s affidavit at 18).

5. The native title party’s contentions in reply submit that the grantee party contentions describe its proposed exploration activities as ‘the usual activities associated with exploration licences and provides an inclusive (not exclusive) list of some of the activities that will be conducted’ (at 2.1). The native title party contents that the evidence provided by the grantee party is ‘broadly stated and not particularly informative’ and on that basis the Tribunal should assume the grantee party will undertake the full range of activities allowed under the proposed licence (at 2.5).

1. The native title party’s contentions in reply also address the relevance of current and former tenure which was discussed by both the grantee party and Government party in their contentions. The native title disputes the contention that the activities to be conducted by the grantee party on the proposed licence will be ‘the same as, or no more significant than, the previous and continuing use of the area (at 3.4), and points to the lack of evidence provided in relation to actual activities previously undertaken in the area (at 3.5-3.6). The native title party contends that even if evidence had been provided, this would not automatically lead to the conclusion that sites or areas had lost their significance ‘or that interference would not be likely as the activity may not have affected the sites/areas “to such a degree that further activity would not constitute interference”’ (at 3.7), citing Western Desert v Teck (at [213]). The native title party points to the finding in Yilka v Goldphyre that ‘mere existence of a pastoral lease or previous exploration activities does not constitute evidence that areas of particular significance have, in fact, been affected’ (at 3.9). The contentions in reply also dispute the contention that a lack of evidence provided by the native title party in relation to previous interference leads to the conclusion that the current proposed licence will not result in interference (at 3.11-3.12).

2. The native title party points to the Government’s proposed endorsement drawing attention to the AHA and notes that an endorsement differs to a condition in that the grantee party will not be liable to forfeit a licence for breach of an endorsement (at 4.1-4.2). The native title party asserts that it is incorrect to assume that interference pursuant to s 237(b) is unlikely due to the Government’s regulatory regime and the grantee party’s awareness of its obligations under the AHA (at 4.3-4.7). The native title party also asserts that the nature of the sites in the proposed licence reduces the utility of the proposed AHA endorsement (at 4.7).

3. The native title party makes a number of arguments in relation to the RSHA, in particular the difference between the versions discussed by the Government party and the grantee party (at 5.4-5.5). The native title party notes the Government party appears to be referring to the Central Desert RSHA in its contentions as being the one relevant for the Central Desert region and that the grantee party refers to various provisions of an RSHA, which the grantee party does not identify, which appear to relate to the Goldfields RSHA.  The native title party lists some differences between the two RSHA versions, including:

   ·The process of notifying the native title party of intended activity (at 5.6(a));

   ·The process for identifying the need for a heritage survey (at 5.6(b));

   ·The conduct of non-ground disturbing or low impact activity and whether a heritage survey is required (at 5.6(c));

   ·Provisions relating to applications under s 18 of the AHA (at 5.6(d)); and

   ·The provision of a heritage survey report to the DAA (formerly known as the Department of Indigenous Affairs) (at 5.6(e)).

4. The native title party asserts that the confusion between the Government party and grantee party over which is the relevant RSHA obviates the protective effect of the regulatory regime (at 5.8-5.9). I note the wording of the Government party condition to be imposed on the grant of the proposed licence is such that the native title party could elect which RSHA would apply.

5. The native title party contentions in reply provide an analysis of the discrepancies between the Central Desert RSHA and the Goldfields RSHA including:

   ·The Central Desert RSHA requires a work program to be provided in relation to ground disturbing works; there is no such requirement in the Goldfields RSHA. The native title party states this contradicts the assertion by the Government party that RSHAs contain a general requirement to provide detailed information and, therefore, the assertion should not be accepted (at 5.11);

   ·Neither RSHA contains a strict requirement for a heritage survey to be conducted when the native title party feels there is risk of interference with sites of particular significance (at 5.12-5.13); and

   ·Both versions of the RSHA require consultation, but not consent of the native title party, in relation to any application made by the grantee party under s 18 of the AHA to destroy a site (at 5.14).

6. In relation to the Central Desert RSHA, the native title party also contend:

   ·The Central Desert RSHA does not address circumstances where the disclosure of certain cultural information by the native title party would be culturally inappropriate, contrary to traditional law and custom, and may itself constitute an interference (at 5.15(a));

   ·The Central Desert RSHA requires the native title party to ‘report information about the nature and exact location of sites in a manner contrary to traditional law and custom’ effectively removing the protection provided by s 7(1)(b) of the AHA (at 5.15(b)); and

   ·The definition of non ground disturbing activity ‘permits certain activities to proceed without a heritage survey being conducted, and where the native title party objects, for example on the grounds that such an activity would cause interference with a site of particular significance, the Grantee Party is only required to meet [with the native title party] to “endeavour” to resolve the matter’ (at 5.16). They say that activities such as ‘accessing the tenement, the use of hand tools for sampling purposes … the establishing of tent or caravan camps not involving heavy vehicles or water bores’ (at 5.16) can proceed without a heritage survey being conducted. The native title party points out that the ‘consent of the Native Title Party to these activities is not required, where the Native Title Party has asserted that these will interfere with a site or area of particular significance’ (at 5.16).

7. The native title party contentions in reply argue that neither the Central Desert RSHA, nor the Goldfields RSHA, provide adequate protection against interference with sites or areas of particular significance (at 5.17-5.20).  This view was reiterated by the native title party at the directions hearing on 18 November 2014.

8. In relation to sites of particular significance, the native title party reply argues that the Government party has applied an overly narrow view to an area identified by Mr Muir as a tjukurrpa site (at 6.1-6.2). I do not identify sites in order to maintain the confidentiality of the information, however, in his affidavit Mr Muir identifies geographic formations created by the tjukurrpa, some of which fall outside the proposed licence and one which he states falls inside. The native title party points to a number of Tribunal decisions which establish sites made by the tjukurrpa­ as being sites of particular significance (at 6.3). The native title party contentions in reply also address the observation by the Government party that no specific location is supplied for the site, which Mr Muir describes as falling within the proposed licence area (at 6.4). The native title party points to the decision in Tullock v Allarrow which discusses that inadvertent interference is likely in relation to sites that require a person with the requisite traditional knowledge to advise people as to its location (at 6.4-6.5).

9. The native title party points to the contention by the grantee party that direct interference is unlikely in relation to the tjiinkuna/kunai tjukurrpa which is not located within the proposed licence area (at 6.6). Mr Muir attests to the interconnectedness between sites inside and outside the proposed licence area, liked by the same tjukurrpa, an argument addressed by Member O’Dea in MNR Aboriginal Corporation v Zenith (at 6.7-6.8).

10. The native title party contentions in reply list evidence provided relating to un-rehabilitated drill holes, leftover sample bags and the creation and use of tracks (at 6.9). They do this to challenge the Government party’s assertion that the native title party has not provided enough evidence in relation to how the activities of the grantee party will interfere with sites of particular significance. However, there is no evidence that such has been caused by the grantee party in this matter.  The native title party points to the evidence of Mr Muir that: he will be held responsible and punished for any failure by the grantee party to rehabilitate the area (at 6.11); and that interference associated with the use of tracks may occur whether the tracks are created through clearance of native vegetation or otherwise (at 6.12).

Submissions of the grantee party

1. The grantee party provided a statement of contentions along with the following annexures:

   ·Annexure 1:     Tengraph Print Object – Native Title Claim WC2011/001 (Tjiwarl)

   ·Annexure 2:     Tengraph Map showing the application area within Tjiwarl Native Title claim

   ·Annexure 3:     Statutory Declaration of Ms Sara Winton dated 23 July 2013 (representative of the grantee party)

2. The grantee party notes that the proposed licence overlaps Temporary Reserve 70/6899 which will be excised from the grant, and asserts that the remaining area of 3,898.32 hectares of the licence will result in only an 0.2 per cent overlap of the whole native title party claim area (at 5-7). The grantee party lists the previous and current tenure underlying the proposed licence and notes that there are no Aboriginal communities, registered sites or other heritage places within the proposed licence area (at 8-11).

3. The grantee party provides general information in relation to the exploration to be conducted and the rights granted under the exploration licence (at 12-13 and 15). In relation to specific activity to be conducted on the proposed licence, the grantee party indicates the proposed exploration activities are the ‘usual activities’ associated with exploration including:

   ·field reconnaissance and geological mapping;

   ·surface geophysics;

   ·low impact broad spaced hand auger drilling;

   ·collection of samples for core assays;

   ·soil sampling; and

   ·surveys.

   The grantee party asserts any ground disturbing work will be broad based (at 14).

4. The grantee party contentions outline the Governments regulatory regime which includes various conditions and endorsements under the Mining Act 1978 (WA), AHA and the Environmental Protection Act 1986 (WA) (listed at [20]-[21] above). The grantee party indicates its awareness of its obligations and its commitment to comply with the AHA and the Environmental Protection Act (at 32 and 39). The grantee party also points (at 27) to the presumption that the Government party will exercise its powers in accordance with the law and that the grantee party will act lawfully in exercising the rights granted under the proposed licence (citing, for example, in Western Australia v Smith; Ward v Western Australia; Little v Western Australia).

5. The grantee party confirms it has offered an RSHA to the native title party and the offer still stands (at 41-42). During the directions hearing held on 18 November 2014, the grantee party clarified that it is willing to enter into either the Central Desert or Goldfields RSHA. It is not clear which RSHA was sent to the native title party by the grantee party, however, in its contentions the grantee party discuss the provisions found in the RSHA which was sent to the native title party dealing with heritage surveys, notification of activities and s 18 applications (at 43-52). The grantee party asserts that its attitude to heritage protection, evidenced by its willingness to enter into a heritage agreement with the native title party, should be taken into consideration by the Tribunal (at 40 and 45).

6. The grantee party contentions point to the lack of registered sites on the proposed licence, but acknowledges sites of particular significance may exist which are not recorded on the register of sites (at 54-55).

7. The grantee party assert that although the native title party contentions describe multiple sites, only one is located within the proposed licence area (at 58-69). In relation to the geographical tjukurrpa site located in the proposed licence being linked to other sites in the wider claim area, the grantee party argues the native title party has not provided enough evidence to support this assertion (at 66-67). The grantee party concludes that the provisions of the RSHA sent to the native title party offers adequate protection against interference with sites of particular significance (at 73-78).

Submissions of the Government party

1. As the native title party did not pursue its objection in relation to s 237(a) and (c), the Government party only makes contentions relating to s 237(b), which will be addressed in this decision below as I consider the evidence provided by the other parties.

Considering the Evidence

Interference with community or social activities – s 237(a)

1. As noted above at [23], the native title party has not made contentions in relation to any community or social activities carried on in the proposed licence area. Notwithstanding the fact the native title party has elected not to address this issue, the Tribunal is nevertheless required to consider whether there is any evidence to support the conclusion that the grant of the proposed licence is likely to interfere with such activities (see Graham v Dunstan Holdings at [8]).

2. The native title party’s evidence focuses on a tjukurrpa story running through the Tjiwarl claim area. No details are provided about community activities undertaken by the native title party, even in a broad sense. The other parties did not provide contentions or evidence in relation to this limb of s 237, as the native title party did not pursue the objection on that limb.

3. On this basis, I find that the grant of the proposed licence is not likely to interfere directly with any community or social activities of the native title party.

Interference with sites or areas of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [18], the DAA Sites Register shows no registered sites or other heritage places within the proposed licence area. This does not mean there may not be sites or areas of significance, or of particular significance, to the native title party within the proposed licence or in the vicinity. The Register of Aboriginal Sites 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.

2. The evidence of the native title party, through Mr Muir, is clear in relation to the specific nature of the ‘very important tjukurrpa story’, and the involvement of tjiinkuna [the hunter].  The ‘area where the Tenement is located is the site of a key component’ of that story (at 4). The activities related to these entities stretch across the native title party claim area, and beyond the borders of the claim area.  I accept that activities related to these entities also created sites and areas which are important to the native title party, including features which are identified by the native title party as being outside the proposed licence: a creek, features of a range, a spring, and other features which are identified as being outside the proposed licence. These features are named within the affidavit but I do not repeat those names here. One feature, the ‘dry lake’, is attested to be within the proposed licence (as noted at [35] and [44] of this decision).  I note that features consistent with its description (that is, non-perennial lakes) are described on the Government party tengraph. The location of the dry lake within the proposed licence is said to be in the south east corner of the proposed licence and I accept Mr Muir’s affidavit evidence and the mapping, which indicates that water related features exist in that area of the proposed licence. Mr Muir states that drilling can cause interference with that feature, and with the tjukurrpa with which it is connected, which extends beyond the borders of the proposed licence (and also beyond the borders of the native title party claim). Mr Muir discusses the trajectory of the tjiinkuna/kunai tjukurrpa, noting the importance of the dry lake located to the south east of the proposed licence. The story then extends north to take in a well and spring, before extending west to another well and finishing at the dry lake located in the south east of the proposed licence. Again, these features are named but I do not repeat the names here as there is sufficient detail to explain my reasons without the names.

3. I note there has been a miscellaneous licence held by a mining company, granted in 1990 which originally covered 54 per cent of the proposed licence, a portion of the licence was surrendered in 1992 and the overlap is now 0.7 percent.  A temporary reserve since held by another company since 1978 also overlaps the proposed licence at 8.6 per cent. The grantee party has agreed to excise the area of the temporary reserve (approximately 3.69 square kilometres) from the proposed licence (Government party contentions at 9; grantee party contentions at 5). In addition, the proposed licence is covered entirely by two pastoral leases. There is, however, no evidence that these activities have affected the geographical feature of the dry lake associated with the tjukurrpa which exists within the south east of the proposed licence.

4. According to DMP and SSO materials provided, I note there are four access tracks recorded as existing on the proposed licence. Mapping shows one of these is near the south east corner of the proposed licence, but does not appear to encroach across the lake/water features as noted on the mapping. Mr Muir states (at 15) that ‘if people want to go out to that country and look around in that Tenement then they should bring the people who know that tjukurrpa with them - that way we can guide them through the area and make sure that they don't leave tracks all over the [geographical feature] there in the Tenement which is the important final place for the [hunter/tjukurrpa]’.  He goes on to say ‘if they created new tracks in the wrong places then that significant part of the story might be worn away particularly if they use the track a lot and it wears out the country’.

5. As outlined in Yindjibarndi Aboriginal Corporation v FMG (at [17]-[18]), what must be shown is that there are sites of particular significance to the native title party, in accordance with the traditions of the native title party. Any such site must be of special or more than ordinary significance to the native title party. It must be capable of being identified and its significance explained, and will generally be located within the proposed licence. In this matter, Mr Muir has outlined that the dry lake, in the south east corner of the proposed licence, is such a site. He has explained its location, and its significance as a ‘key component’ of part of the traditions of the native title party. He has distinguished the dry lake from other features on and around the proposed licence, and outlined why it is significant to the native title party beyond the ordinary. As such, I accept it is a site of particular significance for the native title party. It is not on the DAA Sites Register, but does not need to be for it to be a site of particular significance.

1. Having concluded it is a site of particular significance I turn to the issue of interference. As outlined in Yindjibarndi Aboriginal Corporation v FMG (at [17]-[18]) and accepted by FMG v Yindjibarndi Aboriginal Corporation by the Federal Court, even slight interference may be unacceptable. The nature of the site, the nature of the potential interference, and the native title party laws and traditions are all important in drawing conclusions regarding interference. I must give weight to the State’s regulatory and heritage regime, and there must be a real chance or risk of interference with the site of particular significance, and not just a possible chance.

2. In this matter, Mr Muir has been very specific that activities such as the making of tracks in the area of the dry lake would constitute interference for the native title party. The site is sensitive, and central to native title party traditions in relation to its connection to the dreaming tracks. It appears that the neither AHA or the RSHA would provide the requisite protection for such an area, as the threshold for interference is higher than that needed to constitute interference for the purposes of s 237(b). The grantee party has not outlined its intended activities to any specific degree, and I note that if the grantee party did undertake the full suite of activities available to it under the Mining Act, there are activities it could do which are characterised as low impact for the purposes of the AHA and RSHA. As such, no protection from those regimes would be offered where the impact from the native title party point of view on the dry lake would not be characterised as being low in nature.

3. For these reasons I conclude that the dry lake in the area of the south east of the proposed licence exists, is a site of particular significance to the native title party in accordance with its traditions, and there is a real chance or risk of interference with that site by the grantee party activities for the purpose of s 237(b) of the Act.

Major disturbance to land and waters - s 237(c)

1. As noted above at [23][23], the native title party has not made any specific contentions on the issue of major disturbance. Nonetheless, the Tribunal is required under s 237(c) to make an evaluative judgment of 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, taking into account the concerns of the native title party (see Little v Oriole Resources at [41]-[57]).

2. No specific evidence has been provided regarding any special topographical, geological or environmental factors that might exist in relation to the proposed licence. The activities of the grantee party will be subject to the various regulatory regimes that exist in relation to mining, environmental protection and Aboriginal heritage, as well as the specific conditions and endorsements outlined above, which include the requirement to rehabilitate any disturbances made to the surface of the land. There is no evidence to suggest the grantee party will not comply with these regimes or the conditions imposed.

3. In conclusion, I find that the proposed licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E36/817 to Sammy Resources Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member

2 April 2015