Kevin Cosmos on behalf of Yaburara & Mardudhunera/Western Australia/Baracus Pty Ltd
[2012] NNTTA 106
•10 October 2012
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Cosmos on behalf of Yaburara & Mardudhunera/Western Australia/Baracus Pty Ltd, [2012] NNTTA 106 (10 October 2012)
Application No: WO11/993
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 and Others on behalf Yaburara & Mardudhunera (WC96/89) (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: 10 October 2012
Catchwords: Native title – future acts – 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 cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 61(2), 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:
Billy Coolibah & Others/Western Australia/Ashton Mining [2002] NNTTA 137
Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99
Doris Ryder and Others on behalf of Lamboo People/Western Australia/ Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wilfred Goonack and Others/Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representatives of the Ms Shirley Feng, Corser & Corser
native title party:
Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Mr Matthew Clohessy, Emerald Tenement Services
grantee party:
REASONS FOR DETERMINATION
On 20 April 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2477 (‘the proposed licence’) to Baracus 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 s 31 of the Act).
The proposed licence is situated in both the Shire of Ashburton and Shire of Roebourne. It is 47.8 square kilometres in size and located 41 kilometres north east of Pannawonica. The native title claim of the Yaburara and Mardudhunera People (WC96/89 - registered from 1 August 1996) overlaps 53.4 per cent of the proposed licence, according to the s 29 notice. On 19 August 2011, an expedited procedure objection application was lodged with the Tribunal by Kevin Cosmos on behalf of the Yaburara and Mardudhunera native title claim group (‘the native title party’) in relation to E47/2477.
The proposed licence also wholly overlaps the native title claim of the Kuruma Marthudunera People (WC99/12 – registered from 24 June 1999). The expedited procedure objection application in relation to the proposed tenement lodged by Mark Lockyer and Others on behalf of Kuruma Marthudunera (WO11/937) has been withdrawn pursuant to an agreement.
I note the Yaburara and Mardudhunera People objection application refers, as one of the elements of their objection, that, among other things, ‘...the Guidelines Issued to Persons Obtaining Miscellaneous Licences is not an appropriate level of protection sufficient to protect the land concerned or to avoid outcomes offending the traditions and beliefs held by the claimant people’ (at 7f). It is not clear precisely which document the native title party are referring to as there is no date or publishing details provided, and in addition, this matter relates to the proposed grant of an exploration licence, not a miscellaneous licence, so it is difficult to see how this point adds weight to the objection of the native title party.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Parties negotiated in relation to a draft heritage agreement for several months and directions were extended on a number of occasions to enable negotiations to continue.
On 18 April 2012, both the native title party and the grantee party requested that the matter proceed to inquiry. Directions were amended on three further occasions, at parties’ request.
Pursuant to final directions: the Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party on 21 May 2012; the native title party provided a statement of contentions on 26 June 2012; the State Solicitors Office provided the Government party’s statement of contentions in response to the native title party on 30 July 2012; and the grantee party provided a statement of contentions on 13 August 2012. The Tribunal noted that the original DMP information included a Draft Tenement Endorsement and Conditions Extract for a tenement other than E47/2477. DMP provided the correct tenement information on 17 September 2012 and the Government party provided an amended statement of contentions which referred to correct conditions and endorsements on 4 October 2012.
I note that the native title party’s statement of contentions were submitted outside of the compliance date of 18 June 2012. In correspondence with the Tribunal dated 25 June 2012, the native title party requested an extension of time to comply, based on the need to obtain further instructions. In response, the Tribunal indicated that the native title party’s evidence would be accepted by 26 June 2012. Taking into account s 109(1) of the Act, I accept the native title party’s submission. However, late submissions may not always be accepted by the Tribunal and it is prudent for parties to seek an extension of time prior to a compliance date passing, rather than after. The Tribunal provided requested extensions for compliance to other parties in the circumstances.
On 20 August 2012, I was appointed by President Graeme Neate as the Member for the purpose of conducting the inquiry.
All parties agreed the matter could be determined ‘on the papers’. As such, the inquiry is proceeding to be determined ‘on the papers’ as per s 151 of the Act, and I am satisfied that it can be adequately determined in this way.
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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others /Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).
Evidence in relation to the proposed act
The Government party has 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 area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and a tengraph quick appraisal.
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
· Pastoral Lease 3114/1013 (Yalleen) at 97.1 per cent
· Vacant Crown Land at 2.9 per cent
· File Notation Area (FNA/8487) at 2.8 per cent
Government party documentation establishes: one previously granted exploration licence overlapping the claim area at 93.3 per cent, granted in 2008 and surrendered in 2010; and a temporary reserve granted in 1960 which wholly overlapped the claim area and expired in 1961. A dead mining tenement overlapping 0.5 per cent of the proposed tenement was marked out in 2005 but was not granted, and was withdrawn in 2008.
The quick appraisal document shows that services affected are a major watercourse (Fortescue River) and various minor watercourses.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within the proposed licence. Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed tenement.
A draft tenement Endorsement and Conditions Extract for the proposed licence provided by DMP indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The following additional conditions would also be imposed:
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.
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.
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:
The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder;
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; and
The Licensee’s attention is drawn to the existence of a licence for proposed non-permanent wind monitoring tower granted pursuant to s 91 of the Land Administration Act 1997 and which is shown designated as FNA8487 in tengraph.
Evidence provided by the grantee party
The grantee party did not provide any submissions within compliance dates and initially sought to rely on Government party evidence. At the listing hearing on 9 August 2012, the grantee party requested to file submissions, and was advised to do so by 16 August 2012, and the contentions were received on that day. Following receipt of the grantee party’s submissions, the Tribunal invited any parties who sought to provide further submissions or evidence in response to the grantee party’s submissions to do so by 12 September 2012. No further submissions or information was received.
The grantee party’s statement indicates its proposed exploration activities are to conduct initial exploration over the surface area, consisting of geological mapping and soil sampling, and that all ‘early stage work programs’ would not involve ground disturbing activities. Access to the exploration targets would be via existing station tracks where possible and via helicopter where required. I do note, however, that the Government party response states (at 7) that there are ‘no roads or tracks located within the area’ of Yalleen pastoral lease, and this appears to be confirmed with the tengraph quick appraisal form not listing any tracks or roads.
The grantee party’s statement does not refer to activities proposed beyond initial exploration, but does further note the following intentions and other relevant factors in relation to its proposed activities:
All required rehabilitation would be listed in the conditions attached to the licence document;
The grantee party is fully aware of the requirements of tenement holders in respect to the Aboriginal Heritage Act 1972 (WA) and in particular to its obligations regarding Aboriginal sacred sites and the protection provided by Part 4 of that Act;
The grantee party would agree to undertake a heritage survey if required in order to ensure that Aboriginal sacred sites are not disturbed; and
46.6 per cent of the application area does not encroach upon the native title party claim area.
The grantee party has offered to enter into the Regional Standard Heritage Agreement (‘RSHA’) with the native title party, having entered into such an agreement with Kuruma Marthudunera, the other native title party overlapping the proposed tenement. I understand that DMP only requires a RSHA to be signed in respect of one native title party where there is more than one claim overlapping a proposed licence, and the Government party has not made it a condition to the grant of the proposed tenement that the grantee party offer the native title party in this matter a RSHA. The Government party response notes (at 17) that the grantee party has sent a signed offer of RSHA to the Kuruma Marthudunera representative. I note then the grantee party’s offer to enter into such an agreement with the native title party in this matter, together with its RSHA with the Kuruma Marthudenera, illustrates its willingness to enter into agreement with native title claimants. It also demonstrates that the grantee party is aware of its obligations and is prepared to comply with Government policy and the regulatory regime in relation to the protection of Aboriginal sites.
The grantee party stated that the alternative agreement proposed by the native title party is unacceptable to the grantee party because payment to the native title party under various clauses ‘should not be required’ and are not required in the RSHA in other areas of the State.
Evidence provided by the native title party
The evidence provided by the native title party consists of a statement of contentions signed by Audrey Cosmos on behalf of the native title party in the following terms:
1.The Native Title Party submits that the grant of the exploration licence numbered 47/2477 (‘the proposed tenement’) is likely to:
a. Interfere directly with the carrying on of the community and social activities of the objectors in relation to the land;
b. Interfere with the areas or sites of particular significance to the objectors in relation to the land (in accordance with their traditions); and
c. Involve major disturbance to the land.
2.The Grantee Party has not entered into a mutually acceptable Heritage Agreement with the Native Title Party.
3.The ground covered by the proposed tenement is highly likely to contain sites (within the meaning of that expression in the Aboriginal Heritage Act 1972 (WA)) because:
a. Booyema Creek, Fortescue River and the creeks and inlets running into Fortescue River are seasonal bodies of water which meant that in season, these water sources were a source of traditional food, including kangaroo, goanna, emu and wild turkey who would drink at these water sources.
b. Members of the Yaburara Mardudhunera claimant group would fish in these water sources, and go hunting for kangaroo, goanna, emu and wild turkey. The Yaburara & Mardudhunera people continue to, fish and hunt for traditional foods from this region within the exploration area.
c. The presence of these water sources and food means that the area is very likely to contain old camp sites used by my people’s ancestors when they spend extended periods of time in the region, year to year.
d. Therefore, there is also a strong possibility that there will be traditional gravesites in the region.
e. There is also likely to be scatterings of artifacts within the region, as a result of the historical occupation of the region by my people’s ancestors.
f. It is also a strong possibility that there will be sites and scatterings of artifacts deposited by my ancestors in the course of their observances of traditional ceremonies within the region.
4.If the licence holder is permitted to perform exploration activities within the area of the licence without the ground being surveyed and monitors being present when the region is being disturbed, then there is a risk of damage to items left behind by my ancestors.
5.Further, in traditional terms, there is a strong law requiring my people to care for and protect places where our ancestors have lived, and particularly where they camped, or carried out ceremonies, or where they were buried. The spirits of our ancestors live in these places.
6.If these places are disturbed or damaged then in my people’s belief system they can expect that the disturbance of our ancestors’ spirits will lead to misfortune, ill health and possibly death within my people’s society. For this reason, when exploration activities are to occur without arrangements being in place for the identification and protection of sites and artifacts before the work is done, my people and I experience strong fear of the adverse consequences likely to befall us if and when our ancestors’ spirits are disturbed by damage to or interference with the places that they inhabit.
In relation to accepting the statement, the Tribunal is not bound by the rules of evidence (s 109(3)) of the Act). Doris Ryder & Others on behalf of Lamboo People/ Western Australia/ Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (at [18]-[28]) summarises the Tribunal’s practice with respect to statements not in affidavit form. In that matter, the Tribunal held that evidence relating to the matters in s 237 are central to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders. Though it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from other parties and the evidence is uncontested. In the present matter that is the case and I accept Ms Cosmos’ evidence.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith v Western Australia and Another (2001) 108 FCR 442 (‘Smith’) at [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 (see Smith at [23]). The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’) at [29]-[30], Member Sosso (whose findings I adopt) outlined that:
‘The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.’
The Government party response states (at 15) that the grantee party has not provided any evidence as to how it intends to exercise its rights under the proposed tenement, and that in such circumstances the Tribunal must assume that the grantee party intends to exercise the full suite of rights conferred by section 66 of the Mining Act 1978. Since the Government party submissions were filed, the grantee party filed a statement (see [26]-[29] above), identifying proposed activities comprising initial geological mapping and soil sampling. The grantee party also lists the factors which it asserts will limit its effect on the proposed tenement area, including: the conditions to be imposed by the Government party; its willingness to undertake a heritage survey if required by the native title party; and its willingness to enter into the RSHA with the native title party.
The Government party’s response contends (at 37) that the grantee party’s willingness to enter into an agreement with the native title party is a relevant factor in determining that there is not likely to be interference with the social and community activities of the native title holders (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimaints/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15). The Government party also notes in its contentions (at 37 and 40(b)) that the grantee has indicated its willingness to enter into an RSHA with Kuruma Marthudunera (the other native title party overlapping the proposed tenement – see paragraph [28] above). The Government party response states (at 18) that in general the RSHA provides, amongst other things: that the grantee party must notify the native title party about proposed on-ground works (whether ground-disturbing or not); provide detailed information about those works before commencing them; consult with the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works; carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances; and consult the native title party before applying for any consent under section 18 of the Aboriginal Heritage Act 1972 (‘AHA’).
The native title party submission does not clearly delineate which parts relate to which sections of s 237 of the Act. As such, I have implied those relevant sections from the context of the material provided in the submission. I consider that the native title party submission directed at s 237(a) of the Act are at paragraphs 1 and 3 of the contentions (see [30] above), which in summary are that:
The native title party use Booyema Creek and the creeks and inlets running into Fortescue River for the purposes of hunting and fishing traditional food, including kangaroo, goanna, emu and wild turkey who drink at these water sources (at 3(a) and (b));
The hunting and fishing activities occur ‘in season’, as the watercourses mentioned are ‘seasonal bodies of water’ (at 3(a)); and
The presence of these water sources and food means that the area is ‘very likely’ to contain old camp sites used by the native title party’s ancestors when they spend extended periods of time in the region (at 3(c)), traditional gravesites (at 3(d)) and scatterings of artifacts (at 3(e) and (f)).
The native title party may also intend for paragraph 4-6 of its contentions to be directed at s 237(a) (see [30] above), which in summary state:
The spirits of the native title party’s ancestors live in places where the ancestors camped, carried out ceremonies or where they were buried (at 4); and
If these places are disturbed or damaged then in the native title party’s belief system they can expect that the disturbance will lead to misfortune, ill health and possibly death (at 6).
In response to the native title party’s evidence, the Government party response states (at 39) that there is no evidence, or no convincing evidence, to indicate that the grant of the proposed licence is likely to interfere directly with the carrying on of the community or social activities of the native title party of fishing and hunting for traditional food within the proposed tenement. The Government party response also notes that no affidavit evidence has been adduced in support of these claims (at 38).
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]). The Government party response (at 35) submits that the likelihood of interference directly with the carrying on of community or social activities will only arise if there is evidence of the carrying on of the activities. In the present matter, I agree with the Government party that there is insufficient evidence provided by the native title party about the frequency with which the relevant bodies of water within the proposed tenement area are visited as a communal or social activity for hunting and fishing purposes. I also note it appears that the reference to camping in the region (the native title party’s contentions at 3(c)) refers to potential past ancestral use (rather than continuing use) despite the use of the present tense ‘spend’. Based on the available evidence, I cannot say that it appears that the activities proposed by the grantee party will directly interfere with the community and social activities associated with those places.
To the extent that the native title party intends for paragraphs 4 to 6 of its contentions to be directed at s 237(a) of the Act, the Government party response (at 31) states that s 237(a) does not take account of spiritual or non-physical concerns in isolation from likely interference with some form of physical activity (see Billy Coolibah & Others/ Western Australia/ Ashton Mining [2002] NNTTA 137 at [19]). I agree with the principle cited and consider that there is insufficient evidence to establish a likelihood that community and social activities of the native title party will be interfered with by the grantee party’s activities. Accordingly, the spiritual activities of ‘fear of adverse consequences’ (at 6) are not so rooted in physical social and community activities so as to be within the scope of the section, for the purposes of this determination.
The Government party response states (at 20-21) that to the extent members of the native title party have concerns about exploration activity in general, or things done by other grantee parties, those concerns are not sufficient to overcome the assumption that the grantee party will comply with the regulatory regime. Rather, the evidence must demonstrate that the particular party undertaking the particular act will not comply with a regulatory regime. I agree with the Government party’s submission that evidence of this type has not been provided by the native title party in this proceeding.
To the extent that the Tribunal may accept that the evidence demonstrates members of the native title party carry out community and social activities, the Government party submits that there is not likely to be direct interference because:
There are no Aboriginal communities (in the sense of a geographically localised group of persons) within the area of the proposed tenement (at 36 and 40(a));
The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and it is likely these activities have affected, or continue to affect, the extent to which community and social activities can be carried out in the relevant area (at 40(c));
The proposed tenement area is almost entirely covered by a pastoral lease, and this interest is likely to have extinguished at least any native title rights to control use of and access to the relevant land (if native title had not been previously extinguished) (at 40(d)); and
Hunting, fishing and mineral exploration activity are, by their nature, inherently capable of coexistence and the Tribunal has found this to be the case on numerous occasions unless there is very unusual evidence, which is not the case in this matter (at 40(e)).
In relation to these points, exploration activity in the area has not been extensive. Only one exploration licence has been granted (see above at [20]) which is now surrendered, and there is no evidence of mining activity. However, past and present pastoral activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party referred to in the Government party response (at 40(c)). Accordingly, the carrying on of the community and social activities described by Ms Cosmos is currently largely subject to the lawful activities of the Yalleen pastoralists in terms of the 97.1 per cent claim/proposed licence overlap. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the previous grant of the exploration permit and particularly the current pastoral lease, will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).
The total area of the Yaburara and Marthudunera People claim is approximately 9554.214 square kilometres and the proposed licence is 47.8 square kilometres. The size of the area of the grantee party’s proposed activities within the overlap between the claim and proposed licence area, in the context of the much larger native title claim, and the fact that the overlap between the claim area and proposed licence is 53.4 percent, makes it less likely that exploration activity of the nature outlined in the grantee party’s program of works will interfere with the community or social activities described by the native title party.
In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
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 noted, it is established in DIA documentation that there are no Registered Sites within the overlap between the claim and the proposed licence area. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence/claim overlap 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.
I consider that the native title party contentions directed at s 237(b) of the Act are contained in paragraphs 3 to 6 of its submissions (see [30] above), which in summary are:
The native title party use Booyema Creek and the creeks and inlets running into Fortescue River for the purposes of hunting and fishing traditional food (at 3(a) and (b));
The presence of these water sources and food means that the area is ‘very likely’ to contain old camp sites used by the native title party’s ancestors when they spend extended periods of time in the region (at 3(c)), traditional gravesites (at 3(d)) and scatterings of artifacts (at 3(e) and (f)).
The spirits of the native title party’s ancestors live in places where the ancestors camped, carried out ceremonies or where they were buried (at 4 and 5);
If these places are disturbed or damaged then in the native title party’s belief system they can expect that the disturbance will lead to misfortune, ill health and possibly death (at 6); and
If exploration activities occur without arrangements being in place for the protection of sites and artifacts before the work is done, the native title party experience ‘fear of the adverse consequences’ (at 6).
The Government party response indicates (at 55) that it does not accept the contention that mere presence in an area may cause direct interference with that area; whether or not something directly interferes with an area or site is a matter for evidence establishing that. The Government party response also states (at 56) that it does not accept the implicit contention at paragraph 6 of the native title party’s contentions that a lack of consultation of native title holders before entering land or doing an activity amounts to interference for the purposes of s 237(b) of the Act.
The Government party response states (at 57) that in the event of there being any areas or sites of significance within the proposed tenement, interference with those areas is not likely for the following reasons:
The concerns expressed in paragraphs 4 and 6 of the native title party’s contentions about the disturbance or damage to the environment and any other physical items or relics located within the tenement reflect an overestimate of the activities of the grantee party, and the endorsements and conditions which the Government proposes to place on the proposed tenement are intended to address most of the native title party’s concerns in this regard;
The native title party’s concerns about disturbance of ancestors’ spirits expressed at paragraphs 5 and 6 of the native title party’s contentions will be similarly addressed by the proposed endorsements and conditions. If the native title party believe that any level of ground-disturbing activity will disturb their ancestors’ spirits, Parliament’s intention in drafting the amendment to s 237 in 1998 was to avoid the expedited procedure not applying to almost all exploration tenure on this basis;
Evidence about fear of adverse consequences by the native title party reflects a general spiritual concern to which s 237(b) of the Act does not apply in the absence of evidence of a specific area or site to which this relates; and
Pursuant to the Aboriginal Heritage Act 1972 (‘AHA’), any ‘Aboriginal site’ (as defined in s 5 of the AHA) within the area of the proposed tenement but not on the Register will be protected by s 17 of the AHA. The grantee party may not contravene s 17 without the consent of the Registrar (s 16 AHA) or the Minister (s 18 AHA), and if the grantee party applied for consent under s 18 the Aboriginal Cultural Materials Committee would need to be satisfied of the adequacy of the consultation with any relevant Aboriginal persons (which in this case, is likely to involve the native title party).
The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010), Neville MacPherson at [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250, [2005] NNTTA 99 at [43]). I accept the native title party’s evidence that there is a likelihood of sites, including old camp sites, traditional gravesites and scatterings of artifacts significant to the native title party within the proposed tenement area. However, I agree with the Government party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of them being interfered with.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The evidence of the native title party states that it is ‘very likely’ that the area around Booyema Creek and Fortescue River within the proposed tenement will contain old ancestral camp sites, traditional gravesites and scatterings of artifacts, but I note that this is outlined in a speculative way and does not demonstrate any ‘particular’ significance in the context of s 237(b) of the Act. I am satisfied that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed tenement, are likely to prevent interference with any area or site of ‘particular significance’ in the context of the grantee party’s stated program of activities.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
I consider that the native title party contentions directed at s 237(c) of the Act are contained in paragraphs 4 to 6 of its submissions (see [30] above), which in summary are:
The spirits of the native title party’s ancestors live in places where the ancestors camped, carried out ceremonies or where they were buried (at 4);
If these places are disturbed or damaged then in the native title party’s belief system they can expect that the disturbance will lead to misfortune, ill health and possibly death (at 6); and
If exploration activities occur without arrangements being in place for the protection of sites and artifacts before the work is done, the native title party experience ‘fear of the adverse consequences’ (at 6).
The Government party response (at 63) states that the native title party appears to contend that ‘major disturbance to land or waters’ within the ambit of s 237(c) includes the mere presence of unauthorised persons on land, and that this contention is in effect that the native title party has a right of exclusive possession or obligation to keep strangers out. It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113 (‘Rosas’) at [84]). To that extent, I agree with the Government party’s response (at 64) that s 237(c) relates to significant, direct physical disturbance of land or waters. While it is open for the Tribunal to consider evidence regarding the impact of the proposed act on the customs and traditions of the native title party, that evidence must be directed towards the issue of major disturbance and may not simply repeat contentions raised under s 237(a) or s 237(b) (see Rosas at [86]). Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance: Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72 (‘Geotech’) at [44].
The Government party response notes (at 66(a)) that the grant of the proposed tenement is not likely to involve major disturbance to the land as the exercise of rights conferred by the exploration licence will be regulated by the State’s regulatory regimes and that in the absence of evidence to the contrary, it must be assumed the grantee party will comply with these regulatory regimes. Further, the Government party response submits (at 66(b)) that the area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and is largely covered by a pastoral lease, so the activities contemplated by the grantee party in the proposed tenement area would be the same, or no more significant, than the previous and continuing use of the area.
I note there is no evidence of previous mining activity, only exploration activity as stated earlier in this determination. In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:
97.1 per cent of the proposed licence area covers a pastoral lease where disturbance has already, and will continue to be, carried out;
The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4);
The grantee party has agreed to enter the RSHA should the native title party request it;
The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
There is no firm evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters; and
There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E47/2477 to Baracus Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
10 October 2012
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