Kevin Cosmos and Others on behalf of the Yaburara & Mardudhunera Native Title Claim Group v Baracus Pty Ltd and Another
[2014] NNTTA 36
•15 April 2014
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Cosmos and Others on behalf of the Yaburara & Mardudhunera Native Title Claim Group v Baracus Pty Ltd and Another [2014] NNTTA 36 (15 April 2014)
Application No: WO2013/0081
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
Kevin Cosmos, Robert Boona and Valerie Holborrow on behalf of the Yaburara & Mardudhunera Native Title Claim Group (WC1996/089) (native title party)
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The State of Western Australia (Government party)
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Baracus Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 15 April 2014
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to involve major disturbance to land or waters - expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32(3), 151(2), 237
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA)
Cases:Dann v Western Australia and Another (1997) 74 FCR 391; [1997] FCA 332 (‘Dann v Western Australia’)
Hughes v Western Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69 (‘Hughes v Western Australia’)
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Tullock and Others v Western Australia and Another (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Ward and Others v Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [1996] FCA 1452 (‘Ward v Western Australia’)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the Ms Shirley Feng, Corser & Corser Lawyers
native title party:
Representatives of the Ms Caitlin Brandstater, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representatives of the Mr Matthew Clohessy, Emerald Tenement Services
grantee party:
REASONS FOR DETERMINATION
On 16 January 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2659 (‘the proposed licence’) to Baracus Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA) (‘Mining Act’). 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 normal negotiations required by s 31 of the Act).
According to the notice, the proposed licence comprises an area of 169 graticular blocks (approximately 473.2 square kilometres) located 44 kilometres northerly of Pannawonica, in the shires of Ashburton and Roebourne. The proposed licence is situated entirely within the area of the Yaburara & Mardudhunera native title determination application (WC1996/089 – registered from 1 August 1996).
Kevin Cosmos and other people listed as the registered native title claimants for the Yaburara & Mardudhunera claim (‘the native title party’) made an application to the Tribunal objecting to the inclusion of the expedited procedure statement. I was appointed by President Raelene Webb QC to constitute the Tribunal for the purpose of conducting an inquiry into the objection on 8 February 2013.
Background
At a preliminary conference held on 4 June 2013, 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. Another adjournment was made at a status conference on 2 October 2013 to allow the parties additional time to conclude an agreement, on the understanding that directions would be set if an agreement was not imminent by the time the parties reconvened before the Tribunal. At the adjourned status conference on 23 October 2013, parties indicated that an agreement was not imminent and directions were set for an inquiry.
In compliance with the directions, the following documents were provided:
·Government party’s supporting documents, on 25 November 2013, comprising:
oa Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence;
oa report and plan from the Register of Aboriginal Sites (‘Register’) maintained by the Department of Aboriginal Affairs (‘DAA’);
oa copy of the tenement application and the proposed endorsements and conditions of grant;
othe instrument of licence and first scheduling listing land included and excluded from grant; and
oa Tengraph Quick Appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services, Aboriginal communities and other features within the proposed licence;
·Native title party’s statement of contentions, on 9 December 2013, together with a Tengraph Quick Appraisal for the proposed licence;
·Grantee party’s statement of contentions, on 9 December 2013, accompanied by a report and plan from the DAA Register; and
·Government party’s statement of contentions, on 20 December 2013, together with:
oa map of the proposed licence;
oa Tengraph Quick Appraisal;
oa report and plan from the DAA Register, including details of ‘other heritage places’ within the proposed licence; and
oa Draft Tenement Endorsements and Conditions Extract, indicating the endorsements and conditions intended to be imposed on the proposed licence.
In lieu of a listing hearing, the Tribunal contacted each party by email to ascertain: whether the parties wished to submit any additional materials; the parties’ views on whether the Tribunal could dispense with a formal hearing and proceed ‘on the papers’; and whether the parties had any other requests. The Government party responded on 17 January 2014 to the effect that the matter could proceed on the papers, but did not indicate any intention to provide further materials and made no other requests. No response was received from either the native title party or the grantee party.
I have considered the materials before me in this matter and am satisfied it is appropriate to proceed on the papers in accordance with s 151(2) of the Act.
Legal principles
Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In relation to the legal principles to be applied in this matter, I adopt those outlined by President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15]-[21].
Evidence in relation to the proposed act
The Tengraph Quick Appraisal establishes the underlying land tenure within the proposed licence to be as follows:
·Pastoral leases 3114/1013 (YALLEEN) and 3114/1027 (MARDIE) overlapping the proposed license by 23.2 per cent and 4.9 per cent respectively.
·Historical leases 394/861 and 394/404 overlapping the proposed licence by 5.4 per cent and 17.8 per cent respectively.
·Two parcels of vacant Crown land overlapping the proposed licence by 71.5 per cent and 0.4 per cent respectively.
The Quick Appraisal indicates the area was previously subject to: an exploration licence granted in 1994 and surrendered in 1996, overlapping by 3.6 per cent; two exploration licences granted in 2003 and surrendered in 2007, overlapping by 3.6 per cent and 31.9 per cent respectively; one mineral claim active between 1972 and 1974, overlapping by 0.2 per cent; one temporary reserve, active between 1960 and 1961, overlapping at 1.2 per cent; and two temporary reserves granted in 1966 and cancelled in 1977, overlapping at 2.5 per cent and 16.5 per cent respectively.
The Quick Appraisal also outlines the following features within the proposed licence:
·One geodetic survey station (SSM-VIRCHOW).
·Two tracks.
·Camel Hill, Stewart Peak and Mt Virchow.
·Four major non-perennial watercourses (including the Fortescue River).
·52 minor non-perennial watercourses (including Booyeema Creek and McKay Creek).
·One spring/soak/rockhole/waterhole (Minderoo Pool).
The report and plan from the Aboriginal Heritage Inquiry System maintained by the DAA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) indicates the following registered sites within the proposed licence area:
·Booyeema Hill (Site ID 717) – closed access – no gender restrictions – mythological.
·Birrikulra (Site ID 7049) – open access – no gender restrictions – engraving, artefacts/scatter, grinding patches/grooves, possible talu.
·Balmoral Station (Site ID 11408) – open access – no gender restrictions – engraving.
·Gala Ngalarnu (Site ID 11561) – closed access – no gender restrictions – mythological.
·Galamuna Dalu (Site ID 11808) – open access – no gender restrictions – natural feature.
The report does not indicate any ‘other heritage places’ within the proposed licence area. Based on the Tengraph plan and maps produced by the Government party and the Tribunal, there does not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.
The Draft Endorsement and Conditions Extract 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]). The following additional conditions will 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:-
·The grant of the licence; or
·Registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. No interference with Geodetic Survey Station VIRCHOW and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
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 [sic] attention is drawn to the provisions of the:
· Waterways 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 the DoW.
In respect to Waterways the following endorsement applies:
7. Advice shall be sought from the DoW if proposing any within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
8. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by DoW.
The Government party has also outlined its intention to place a further condition on the grant requiring the grantee party to execute a Regional Standard Heritage Agreement (‘RSHA’) in the native title party’s favour if requested to do so by the native title party within 90 days of the grant (‘the RSHA Condition’).
Native title party’s statement of contentions
The native title party submits that the Tribunal should find that the expedited procedure does not apply or that the proposed licence should only be granted on condition that surveys are conducted by the native title party before any exploration activity commences. I note that the Tribunal has no power, in the expedited procedure objection process, to determine that the proposed licence may only be granted subject to conditions.
The native title party’s contentions are summarised in the following three paragraphs.
Interference with Community or Social Activities (s 237(a))
·Members of the claim group engage in traditional activities such as camping, hunting and fishing within the proposed licence area (at 8).
·Section 66 of the Mining Act entitles the grantee party to enter the land with such agents, employees, vehicles, machinery and equipment for the purpose of exploring for minerals in, on or under the land. It is highly likely the presence of such vehicles and machinery will scare off any wild animals such as kangaroos, goanna and wild turkey from the area, which would affect the native title party’s ability to hunt in the proposed licence area (at 9).
Interference with Areas or Sites of Particular Significance (s 237 (b))
·There are five registered Aboriginal sites within the proposed licence area, which are of great significance to the native title party as they contain important artefacts and scatterings left behind by the native title party’s ancestors resulting from their historical occupation and observance of traditional ceremonies within the proposed licence area. Further, the Booyeema Hill and Gala Ngalarnu sites have great mythological significance and play an important role in the native title party’s dreamtime stories and beliefs (at 10).
·The Yaburara & Mardudhunera people believe that any interference (including exploration activity) on or near these significant sites will upset the beings and equilibrium in these areas. Furthermore, the Yaburara & Mardudhunera people hold strong concerns that any access tracks made to accommodate the exploration will make the sites more accessible to the general public, and people who would not normally go into those areas would do so without understanding their significance (at 11).
·There are fifty six major and minor watercourses which flow within the proposed licence area, the majority of which are non-perennial and support the existence of animals and plants, which form a main source of food for members of the claim group (at 12).
· The Fortescue River is central to the native title party’s identity, as the word ‘Mardudhunera’ refers to the people who live around the river. It is likely there are numerous sites of varying levels of significance along and close to the river (at 13).
·There is a waterhole/rockhole located at Minderoo Pool that is likely to contain scatterings and rock carvings of mythological significance (at 14).
·Even though the grantee party is now on notice that significant sites exist within the proposed licence area, the exact location of these sites is unknown to them, meaning that the AHA will fail to protect them unless there is close liaison between the native title party and the grantee party through negotiation and agreement (at 15).
·The native title party is currently undertaking further investigation into the significant sites within the proposed licence area and seeks leave to submit supplementary submissions and evidence in this regard (at 16). (I do note, however, that no further materials were received from the native title party.)
Major disturbance to Land or Waters (s 237 (c))
·There is a real risk of damage to the land and to items left behind by the native title party’s ancestors if the grantee party is permitted to perform exploration activities within the proposed licence area without the land and waters being surveyed and monitored during ground disturbance (at 17).
·The grantee party has yet to provide any evidence as to their exploration intentions or the type of work that is likely to be conducted on the proposed licence area. In the absence of evidence to the contrary, the Tribunal may therefore assume that the grantee party will fully exercise the rights conferred by the proposed licence (at 18). (I note, however, that the grantee party subsequently provided information about its proposed exploration programme (see [25] below)).
·The rights and activities conferred by the proposed licence under s 66 of the Mining Act include: digging pits, trenches and holes in the land; sinking bores and tunnels; excavating and removing land, earth, soil, rock and stone from the land; and taking water from the land. These activities are likely to result in the removal of and disturbance to traditional bush tucker, bush medicines and traditional items (at 19).
·In determining whether the proposed licence is likely to involve major disturbance to any land or waters concerned, the Tribunal should give weight to the local effect of the proposed licence and, in particular, its effect on the native title party (at 20).
·There is strong law requiring the Yaburara & Mardudhunera people to care for and protect places where their ancestors have lived, and particularly where they camped, carried out ceremonies, or where they were buried (at 21).
·If these places are disturbed or damaged then the Yaburara & Mardudhunera people believe the disturbance of their ancestor’s spirits will lead to misfortune, ill health and possibly death within their people’s society (at 22).
The native title party has not provided any material in support of its contentions and did not seek to call witnesses at an oral hearing.
Grantee party’s statement of contentions
The grantee party makes the following statements in support of its contention that the expedited procedure should apply to the proposed licence:
·The grantee party intends to conduct initial exploration over the surface area consisting of geological mapping and soil sampling following the grant of the proposed licence. Early stage work programs will not require ground-disturbing activities and access to the exploration targets will be via existing station tracks where possible and via helicopter where required.
·The grantee party is fully aware of the requirements of tenement holders in respect to the AHA and particularly its obligations regarding the protection of Aboriginal sites.
·The grantee party is willing to enter into the RSHA with the Yaburara & Mardudhunera people and is agreeable to undertaking a heritage survey if required to ensure that Aboriginal sites are not disturbed.
·The agreement proposed by the native title party is unacceptable to the grantee party on the basis that the payments to the claimant group and administrative fees should not be required and are not required in RSHAs in other areas of the State.
I note that the statements referred to in the preceding paragraph were made by way of contentions provided by the grantee party’s representative, and was not supported by any further information provided by, for example, an authorised officer of the company. Though I accept that the grantee party’s intentions are relevant to evaluating the level of disturbance likely to result from the grant of the proposed licence, I note that the grantee party has only outlined its plans in relation to the initial stages of exploration. If the grantee party has some success in its initial efforts, it is highly probable that its activities will become more intensive. In that respect, I am not able to discount the possibility that the grantee party will exercise the full suite of rights available under the Mining Act on grant of the proposed licence. Though I can rely to some degree on the grantee party’s statement that it will only access exploration targets using existing tracks, supporting information from an authorised officer of the company, whether by affidavit or otherwise, would have assisted the Tribunal in considering that statement.
Government party’s contentions and evidence
The Government party contends, among other things, that the:
·proposed licence is for an initial term of five years and is renewable. The rights conferred by the proposed licence (if granted) are set out in section 66 of the Mining Act (at 12-13);
·grantee party has given some indication of the kinds of activities it will engage in over the proposed licence area and its intentions regarding the protection of Aboriginal heritage. There is no basis to conclude the grantee party will not act in accordance with its stated intentions (at 15-16);
·Government party intends to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract, as well as the RSHA Condition (at 17-18; see [16]-[18] above); and
·proposed licence can be forfeited for any breach of a statutory condition or condition imposed by the relevant Minister (at 19).
The Government party contends that, in the absence of evidence to the contrary, the Tribunal must assume that a grantee party will not act in breach of the relevant statue law, regulations or conditions imposed upon them (at 22).
In relation to the materials provided by the native title party, the Government party contends that the statements made in its contentions are not evidence but assertions unsupported by evidence, and should not be relied on by the Tribunal. Alternatively, the Government party contends that the statements are too general to be given any (or any significant) weight or otherwise to be relied on by the Tribunal.
Government party’s contentions in relation to s 237(a)
The Government party contends that the native title party has not provided sufficient evidence to establish that any of the community and social activities referred to in the native title party’s contentions are carried on by the native title party in the proposed licence area (at 42).
To the extent the Tribunal does find community or social activities are carried out on the proposed licence, the Government party contends (at 43) that direct interference is unlikely to occur because:
·the grantee party has indicated its willingness to enter into an RSHA type agreement with the native title party, which shows a willingness to consult with the native title party and avoid activities that are likely to interfere with its community and social activities;
·previous mineral exploration and possibly mining activity is likely to have already affected the exercise of community and social activities in the area;
·there are no Aboriginal communities within the area; and
·exploration activities are inherently capable of existing alongside hunting.
Government Party’s contentions in relation to s 237(b)
The Government party acknowledges the existence of five registered Aboriginal sites within the proposed licence area, but contends that their registration under the AHA is not determinative of whether they are sites of particular significance within the meaning of s 237(b). The Government contends that the native title party has not provided sufficient evidence to demonstrate the particular significance of the registered sites (at 52), and makes the same contention in relation the watercourses and the waterhole/rockhole at Minderoo Pool (at 53). In the Government party’s submissions, an ‘area or site of particular significance’ must stand out in some way from the general background of other sites and the country as a whole, and there must be evidence to show that it stands out in this way (at 54).
In any event, the Government party contends (at 55) that interference is not likely because:
·to the extent that sites referred to in the native title party’s statement of contentions are sites of particular significance, the grantee party is aware of the existence of those sites and its legal obligations in respect of them;
·the grantee party has agreed to work with the native title party through the RSHA to avoid interference with sites of particular significance, which indicates its willingness to consult with the native title party and avoid activities likely to interfere with the activities of the native title party;
·the native title party has the opportunity of enforcing this expression of intention by invoking the RSHA Condition;
·the concerns expressed in the native title party’s statement of contentions regarding disturbance to ‘beings and equilibriums’ in the area reflect an overestimate of the grantee party’s activities, and in any case, such beliefs are close to ubiquitous among Aboriginal people in many areas and should not be sufficient to disapply the expedited procedure;
·the native title party’s contentions concerning the disturbance of beings on or near significant sites reflects a general spiritual concern to which s 237(b) does not apply, and there is no evidence of a specific area or site to which the concern relates. To enliven s 237(b), spiritual or emotional concerns of this kind must attach to physical interference with an identified area or site of particular significance;
·the area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area; and
·the AHA and its associated processes are likely to prevent interference with any area or site of particular significance to the native title holders.
Government Party’s contentions in relation to s 237(c)
The Government party contends that s 237(c) is only enlivened where there is a significant, direct physical disturbance of land or waters. The Government party contends that the qualification ‘major’ should be given its ordinary meaning and assessed objectively. While conceding that the perspectives of Aboriginal people are relevant, the Government party contends that ‘major disturbance’ is not a subjective notion entirely to be determined by the opinions of the native title party.
In relation to the proposed licence, the Government party contends major disturbance is unlikely to occur for the following reasons:
·the exercise of rights conferred by the proposed licence will be regulated by the Government party’s regulatory regimes with respect to mining, Aboriginal heritage and the environment.
·any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following the completion of exploration.
·the area of the proposed licence has been subject to prior mineral exploration and possibly mining activity. The activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area.
·it does not appear that the area has any particular characteristics that would be likely to result in ‘major disturbance’ to land and waters arising given the activities proposed by the grantee party.
Considering the Evidence in context of s 237 of the Act
In relation to what information is provided to the Tribunal, parties have what Carr J described in Ward v Western Australia as ‘an evidentiary choice’ (at 217). Justice Carr went on to say ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its commonsense approach to evidence…if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the commonsense approach to evidence.’
Expedited procedure inquiries are designed to be conducted in an informal, quick and economical manner (see s 109(1) of the Act). There is no onus of proof as such, but a commonsense approach to the evidence means that parties will produce evidence to support their contentions, particularly where the facts are peculiarly within their knowledge (such as how grantee party activities may impede or adversely affect the native title party by reference to the criteria in the limbs of s 237) (see Hughes v Western Australia at [18]).
If a party fails to provide relevant evidence on critical aspects of the Tribunal’s inquiry, the Tribunal will proceed to make a determination based upon the information before it. In this matter, as noted above, and further below, the native title party has not provided any evidence to support its contentions in this matter.
Interference with community or social activities – s 237(a)
The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith v Western Australia at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith v Western Australia at [27]).
The native title party contends that members of the claim group engage in traditional activities such as camping, hunting and fishing within the proposed licence area, but has not provided any evidence in support of that contention. That being the case, there is nothing in the materials before me that would allow me to assess the likelihood of direct interference with the native title party’s community and social activities. The native title party has given no explanation as to why evidence of this nature was not provided to the Tribunal, and I accept the Government party’s submission that I should not give significant weight to the statements made in the native title party’s contentions without supporting evidence.
In the absence of evidence that community and social activities are carried on by the persons holding native title to the land and waters concerned, I find the proposed licence is not likely to result in interference of the kind contemplated in s 237(a).
Interference with sites or areas of particular significance – s 237(b)
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, of special or more than ordinary) significance to the native title party in accordance with their traditions.
Although there are five registered sites within the proposed licence area, the mere fact of registration is not conclusive evidence that an area or site is of particular significance according to the traditions of the native title holders (see Western Australia v Thomas at 174). The native title party contends that the sites are of ‘great significance’ to the claim group on the basis of their connection to the group’s historical occupation and observance of traditional ceremonies within the area. The native title party also seeks to emphasise the mythological significance of the Booyeema Hill and Gala Ngalarnu sites and their role in the native title party’s belief system. However, the native title party has not provided any evidence of the sites’ significance nor sought to explain what distinguishes them as sites of particular significance to the Yaburara & Mardudhunera people.
The native title party also rely on the existence of numerous watercourses within the proposed licence area. However, apart from the Fortescue River, which is described as being central to the claim group’s identity, the native title party has not explained the significance of these watercourses, except in relation to their ecological and economic value. As for the Fortescue River, there is no evidence to support the conclusion that the river (or that part of the river which is situated within the proposed licence) is an area or site of particular significance. In relation to the likelihood that other sites of varying levels of significance exist along and close to the river, I appreciate that such sites may exist and be of importance to the native title party, however, such statements, without any supporting evidence, provide no real basis for a positive finding as to the existence of areas or sites of particular significance for the purposes of s 237(b) of the Act.
In relation to the waterhole/rockhole at Minderoo Pool, there is no evidence that the site contains artefacts or rock carvings, and there is no basis on the material before me for concluding that the site has mythological significance.
Evidence in the form of an affidavit or signed statement from a member of the native title party, and/or anthropological evidence, or similar such evidence, rather than contentions from the native title party representative only, are always of assistance to the Tribunal when making decisions in relation to the limbs of s 237 of the Act.
As there is no evidence to establish the existence of areas or sites of particular significance, either within the proposed licence or the surrounding area, it is unnecessary for me to determine the likelihood of interference within the meaning of s 237(b). I do note there is no evidence to suggest that the grantee party will not comply with its obligations, and the native title party is entitled to seek further protection through an RSHA.
On the basis of the material before me, I find the proposed licence is not likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title holders.
Major disturbance to land or waters – s 237(c)
The Tribunal is required 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, as well as taking into account the concerns of the native title party (see Little v Oriole Resources at [41]-[57]).
The native title party contends there is strong law requiring members of the claim group to care for and protect places where their ancestors have lived, and particularly where they camped, carried out ceremonies or were buried. The native title party also contends that, according to the beliefs of the Yaburara & Mardudhunera people, the disturbance or destruction of these places will lead to misfortune, ill health and possible death within the group.
The concerns of the local Aboriginal community, including matters such as community life, customs, traditions and cultural concerns, are relevant to evaluating whether there is likely to be major disturbance (see Dann v Western Australia at 395, 401 and 413). In that regard, I accept that beliefs surrounding the consequences which may befall a particular community as a result of damage to certain places may be relevant to the consideration of major disturbance under s 237(c). However, in the present matter, there is no evidence to support the existence of these beliefs or the kinds of places to which those beliefs are said to attach. In these circumstances, I have not given significant weight to the concerns expressed by the native title party as they have only been provided in the form of contentions, and not with supporting evidence.
The grantee party indicates that its initial exploration programme will consist of geological mapping and soil sampling, and will not require ground-disturbing activities. The grantee party also says it plans to access exploration targets by way of existing station tracks where possible, and by helicopter where required. The Government party contends there is no basis to conclude the grantee party will not act in accordance with its stated intentions and the Tribunal should give weight to the range of things which the grantee party proposes to do, rather than the activities it is entitled to carry out under the proposed licence. Without evidence from the grantee party, I have only the statement from the grantee party representative to rely upon.
Nevertheless, even if the grantee party were to fully exercise its rights under the proposed licence, I do not consider the grant of the proposed licence will result in major disturbance to the land or waters concerned. In reaching this conclusion, I have had regard to the following factors:
·The grantee party’s activities will be subject to regulatory regimes with respect to mining, Aboriginal heritage and the environment. The proposed endorsements direct the grantee party’s attention to the AHA and to environmental and water management legislation. There is no evidence that the grantee party is unlikely to comply with these regimes.
·The proposed conditions require the grantee party to rehabilitate all disturbances made to the surface of the land to the satisfaction of the Department of Mines and Petroleum’s Environmental Officer, and prohibit certain ground disturbing activities unless written approval is obtained.
·There is no evidence that the proposed licence has any sensitive topographical, geological or topographic characteristics that might lead to the conclusion that exploration activities would result in major disturbance to land or waters.
Taking account of these matters, I find 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
The determination of the Tribunal is that the act, namely the grant of exploration licence E47/2659 to Baracus Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
15 April 2014
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