Kevin Cosmos on behalf of Yaburara & Mardudhunera/Western Australia/Mineralogy Pty Ltd
[2013] NNTTA 158
•13 November 2013
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Cosmos on behalf of Yaburara & Mardudhunera/Western Australia/Mineralogy Pty Ltd
[2013] NNTTA 158 (13 November 2013)
Application No: WO2012/1369
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Cosmos on behalf of Yaburara & Mardudhunera (WC1996/089) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Mineralogy Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 13 November 2013
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 cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 237
Mining Act 1978 (WA), s 66, 111
Aboriginal Heritage Act 1972 (WA)
Rights in Water and Irrigation Act 1914 (WA)
Cases: Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99, (‘Cheinmora’)
Kevin Walley on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan [2001] NNTTA 78, ('Brosnan')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)
Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Geotech’)
Representatives of the
native title party: Ms Shirley Feng, Corser & Corser
Representatives of the
Government party: Mr Matthew L Smith, Department of Mines and Petroleum
Ms Bethany Conway, Department of Mines and Petroleum
Ms Shelley Moore, State Solicitor’s Office
Representatives of the
grantee party: Mr Mike Dunham, Mineralogy Pty Ltd
REASONS FOR DETERMINATION
On 22 August 2012, the Government party, through the Department of Mines and Petroleum ('DMP'), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2401 (‘the proposed licence’) to Mineralogy Pty Ltd (‘the grantee party’). The Government party 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).
According to the notice:
·the proposed licence is approximately 159.8 square kilometres in size;
·the proposed licence is located 69 kilometres north west of Pannawonica, in the Shire of Roebourne;
·the native title party had until four months after the notification date, that is, until 22 December 2012, to lodge an objection application against the expedited procedure statement.
On 19 December 2012, 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 the proposed licence. The native title claim of the Yaburara and Mardudhunera People (WC1996/089 - registered from 1 August 1996) overlaps the proposed licence by 100 per cent.
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 attempted to negotiate an agreement over a period of 4 months. Ultimately, parties were unable to reach agreement.
Directions were issued for an inquiry and in compliance with those:
·the DMP provided documents on behalf of the Government party on 19 August 2013;
·the native title party provided a statement of contentions on 2 September 2013;
·the grantee party provided a statement of contentions on 9 September 2013;
·the State Solicitor’s Office provided the Government party’s statement of contentions on 16 September 2013.
On 30 October 2013, I was appointed by President Raelene Webb QC as the Member for the purpose of conducting the inquiry.
Section 151(2) of the Act provides that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and material provided by the parties, and I am satisfied that this matter can be determined in this way.
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 Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles 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 principles outlined in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following principles 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 principles outlined in Maitland Parker at [31]–[38], [40]-[41].
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 Smith at [23]). This involves an evaluative judgment on whether major disturbance to land and waters concerned is likely to occur, from the point of view of the Australian community, inclusive of the Aboriginal community, as well as considering the concerns of the native title party (Little at [41]-[57]).
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 Aboriginal Affairs (‘DAA’) (formerly the Department of Indigenous Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; and a tengraph quick appraisal.
The tengraph quick appraisal establishes the underlying land tenure within the area of E08/2401 to be as follows:
·Pastoral Lease 3114/1027 (Mardie) at 39.1 per cent;
·Petroleum Exploration Permit EP 466 at 58.3 per cent;
·Crown Reserve 9701 for the purpose of ‘De Grey Mullewa Stock Route’ at 4.2 per cent;
·Crown Reserve 380 for ‘Public Purposes’ at 1.2 per cent;
·Unallocated Crown land at 55 per cent;
·Three closed road reserves each at less than 0.1 per cent.
The quick appraisal establishes the area within this proposed license has previously been subject to seven exploration licences and five temporary reserves. These licences were variously active between 1966 and 2012, overlapping the proposed licence between 100 per cent and 0.1 per cent and variously, surrendered, cancelled or expired.
The quick appraisal documents indicate that services affected within the proposed licence are: one minor road, eight tracks, two fence lines, six wells with windmills, twelve survey stations and six minor watercourses.
According to the report from the DAA Register, there are nine registered sites within E08/2401 as follows:
·Site ID 906 site no. P07266, Fortescue Mouth Track 1 (artefacts / scatter, midden / scatter, grinding patches / grooves)
·Site ID 907 site no. P07267, Fortescue Mouth Track 2 (artefacts / scatter, midden / scatter, grinding patches / grooves)
·Site ID 908 site no. P07268, Fortescue Mouth Track 3 (quarry, artefacts / scatter, midden / scatter, grinding patches / grooves)
·Site ID 909 site no. P07269, Fortescue Coast – Dunes (midden / scatter)
·Site ID 910 site no. P07270, Fortescue Mouth (artefacts / scatter, midden / scatter)
·Site ID 11409 site no. P00759, Mardie Station A (engraving, artefacts / scatter)
·Site ID 11410 site no. P00760, Mardie Station B (engraving, artefacts / scatter)
·Site ID 1814, Cape Preston 11 (artefacts / scatter)
·Site ID 1815, Cape Preston 12 (artefacts / scatter)
The Aboriginal Heritage Inquiry System also indicates the following other heritage places within the area of the proposed tenement:
·Site ID 26922 site no. AS134, (artefacts / scatter)
·Site ID 26928 site no. AS144, (artefacts / scatter)
·Site ID 26959 site no. AS190, (artefacts / scatter)
·Site ID 26986 site no. AS141, (artefacts / scatter)
.
No party asserted that there are Aboriginal communities on or near the proposed licence, and nothing in the DMP materials suggested this is the case.
The draft tenement Endorsement and Conditions Extract for the proposed licence provided by DMP indicates that the grant will be subject to the standard four conditions. The proposed licence will also be subject to five further conditions and fourteen endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) (attached to this decision at Annexure A).
The Government party states in its contentions (at 21) that it will place the following Regional Standard Heritage Agreement (‘RSHA’) condition on the grant of the proposed licence:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Yaburara & Mardudhunera People (WC96/89), being the applicants in Federal Court application No. WAD127/97, such request being sent by pre-paid post to reach the Licensee’s address, [address], not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Yaburara & Mardudhunera People the Regional Standard Heritage Agreement (‘RSHA’) endorsed by peak industry groups and by the Pilbara Native Title Service.
Evidence provided by the grantee party
The grantee party’s statement of contentions is accompanied by an affidavit of Mr Christopher Spielvogel, Exploration Manager for Mineralogy Pty Ltd dated 9 September 2013. Mr Spielvogel says (at 20) that the exploration activities proposed include ‘conducting field reconnaissance and geological mapping, surface geophysics, low impact exploratory drilling and collection of samples for core assays and down a whole geophysical logging and survey’. The grantee party’s contentions state (at 6) that the proposed licence area, to varying degrees, has been subject to exploration rights since 1966 and has been 100 per cent subject to exploration license since 2001. However, I note the previous exploration licence which covered the area was only granted in 2007 and not 2001 and the previous exploration licence, granted between 1982 and 2001, overlapped the proposed licence by between 0.1 per cent and 57.6 per cent. The grantee party’s contentions state that the proposed licence has also been subject to the Mardi Pastoral Lease and the De Grey Mullewa Stock Route. The grantee party contends that the level of exploration contemplated is generally of a low impact or will be very centralised (drilling), and that the level of disturbance to flora and fauna would be no more than that occasioned by pastoral use, use of the stock route, previous exploration for minerals or even hunting.
The grantee party’s contentions also assert the grantee party will comply with obligations which it has under relevant legislation including the Mining Act 1978 (WA) and Regulations (WA), the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and the Native Title Act1993 (Cth) and will act lawfully in exercising rights given in respect of the proposed licences.
Evidence provided by the native title party
Whilst it is stated in the objection application filed by the native title party that the native title party would provide to the Tribunal written statements of evidence from the elders within the native title claimant group as to the present and historical significance of the proposed tenement area, the native title party have provided contentions in this matter, but have not provided any affidavit or other forms of evidence.
The native title party’s contentions briefly address interference with community and social activities under s 237(a) of the Act. They state that members of the Yaburara and Mardudhunera claimant group engage in ‘traditional activities such as camping, hunting and fishing’ within the area of the proposed licence (at 6) and that due to the location of the proposed licence ‘being along the coast line and directly over a number of river inlets, creeks and other water bodies, the tenement contains high counts of wild animals, fish and bush tucker and is therefore very fertile hunting, fishing and foraging ground for the native title party’ (at 7). The native title party states that the use of machinery and vehicles authorised under s 66 of the Mining Act1978 (WA) will scare off any wild animals and impact on the ability of the native title party to hunt in the proposed licence area (at 8).
The native title party’s contentions relating to s 237(b) of the Act are contained in paragraphs 9 to 14 of their contentions. The native title party states (at 9) that there are nine registered DAA sites within the proposed tenement area and that ‘these sites 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 as a result of their historical occupation and observance of traditional ceremonies within the Tenement area.’ The native title party states (at 10) that ‘the Yaburara and 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 and Mardudhunera people hold strong concerns that any access tracks that are made to accommodate the exploration will make the sites more accessible to the general public, and people who wouldn’t normally go into those areas would do so without understanding their significance.’
The native title party contends (at 12) that heritage surveys have only been carried out in relation to a very small percentage of the proposed tenement area and it is highly likely that there are more significant sites within the proposed tenement, particularly near rivers and water bodies where scatterings of artefacts may lie, and particularly given the general site-rich nature of the area, as reflected in the results of previous heritage surveys conducted. They argue (at 13) that even though the grantee party is now on notice that significant sites exist within the proposed licence, the exact location of these sites is unknown to them, and, therefore, the AHA will fail to protect these sites unless there is close liaison between the native title party and the grantee party through negotiation and agreement.
The native title party’s contentions relating to s 237(c) of the Act are contained in paragraphs 15-20 of their contentions. They submit (at 15) that if the grantee party performs exploration activities in the proposed licence without the land and waters being surveyed, and without monitors being present when the area is being disturbed, there is a risk of damage to the land and to items left behind by the native title party’s ancestors. They note (at 16) that the grantee party has not provided any evidence as to their exploration intentions. However the native title party’s contentions were provided prior to the grantee party’s contentions and so the native title party did not have the benefit of the grantee party’s affidavit evidence which outlined initial exploration activity. In their contentions, the native title party did seek leave to respond to any evidence or contentions filed by the grantee or Government party and also did seek leave to submit supplementary submissions and evidence in relation to further investigation which the native title party was said to be undertaking into significant sites within the proposed licence. However, I note that on 23 September 2013 the Tribunal wrote to all party representatives asking if parties agreed that they did not intend to make any further submissions and, therefore, the matter could proceed to inquiry on the papers. The native title party representative responded on 2 October 2013 confirming that the native title party was agreeable to proceeding on the papers, and no request was made to file further documents.
The native title party states (at 18) that the disturbance in this case has such consequences for people in the local area as to properly be called a major disturbance, ‘notwithstanding that it would be of no consequence to non-Aboriginals who live far away’. They state (at 19) that there is a strong law requiring the native title party to care for and protect places where their ancestors have lived, and particularly where they camped, carried out ceremonies or were buried, as the spirits of their ancestors live in these places. Furthermore, they state (at 20) that if these places are disturbed or damaged, then in the native title party’s belief system they can expect that the disturbance of their ancestors’ spirits will lead to misfortune, ill health and possibly death within their people’s society. As a result, when exploration activities are to occur without arrangements being in place for the identification and protection of sites and artefacts, the native title party states they will ‘experience strong fear of the adverse consequences likely to befall them if and when their ancestors’ spirits are disturbed by damage or interference with the places that they inhabit’.
The native title party submits that the expedited procedure does not apply to the proposed licence ‘however, if the National Native Title Tribunal finds that it does, the Native Title Party submits that the tenement should only be granted on the condition that surveys are conducted by the Native Title Party before any exploration activity commences' (at 21). There is nothing in the Act which empowers the Tribunal to impose such conditions on the determination of an expedited procedure matter.
Evidence provided by the Government party
The Government party notes there are no Aboriginal communities on the proposed licence and that there previously has been mineral exploration and possibly mining activity over the proposed licence area. They also note the DAA registered sites as already outlined in this decision.
The Government party notes the grantee party contentions including that:
·The grantee party is aware of its obligations under the AHA and intends to conduct its work in a way which does not adversely impact on heritage sites;
·The grantee party will not exercise the full suite of rights conferred by section 66 of the Mining Act 1978 (WA), but rather much of the work under the proposed licences will include conducting field reconnaissance and geological mapping, surface geophysics, low impact exploratory drilling and collection of samples for core assays and down a whole geophysical logging and survey;
·The native title party refused the grantee party’s offer to enter into a RSHA and instead proposed an alternative heritage agreement. The native title party’s proposed alternative heritage agreement was unacceptable to the grantee party because it has other mining tenements in the area subject to the RSHA and wished to avoid the confusion of multiple heritage agreements. The grantee party however remains willing to enter into a RSHA.
The Government party contends that there is no basis for a conclusion that the grantee party will not act in accordance with its stated intentions and significant weight should be given to the range of things which the grantee party proposed to do under the tenement as opposed to the activities which the grantee party could do. I do note there is nothing which specifically outlines that the grantee party will not exercise the full suite of rights it is entitled to. However, in the absence of evidence from the native title party, even assuming the grantee party will exercise all such rights, little can be concluded about how this would adversely affect the native title party’s rights and interests.
The Government party states there is no evidence the grantee party will act in breach of the regulatory regime, and that endorsements and conditions will be imposed on the proposed licence. I agree with this contention.
The Government party notes the native title party has not provided any affidavit evidence in this matter and the contentions which have been provided are assertions that are unsupported by any evidence. I accept the Government party’s argument that failure to lead evidence will not necessarily result in a party failing on an issue, but where facts are peculiarly within the knowledge of a party, the failure of that party to produce evidence as to those facts may lead to an unfavourable inference being drawn (see for example Brosnan at [63] and Silver at [23]).
The Government party has addressed each subsection of s 237 in its contentions.
In summary, for s 237(a) the Government party states that to the extent the native title party carry out any community or social activities in the proposed licence area, there is not likely to be direct interference because:
·The grantee party has indicated its willingness to enter into an RSHA agreement with the native title party;
·There are no Aboriginal communities within the area of the proposed tenements;
·Any intersection between the grant of the proposed tenement and the current activities of the native title party on the proposed tenement area would be the same as, or no more significant than, the previous and continuing use of the area; and
·The relatively low scale exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon camping, hunting or fishing in the proposed tenement area.
In relation to s 237(b), the Government party does not accept the native title party’s contention that there is likely to be sites of 'particular significance' in the area, and submits that interference with any sites, should the Tribunal hold that there are such, is not likely because:
·To the extent that the registered heritage sites are sites of particular significance the grantee party is aware of the existence of this sites and of its legal obligations in respect of the those sites;
·Ground disturbing activities will be conducted in such a way as to not adversely impact on sites and which will respect local Aboriginal cultural concerns;
·The concerns expressed by the native title party’s contentions about sites becoming more accessible through the creation of access tracks reflect an overestimate of the activities of the grantee party and there is no evidence that the grantee party is going to conduct activities which will have those effects;
·Assertions about the disturbance of the ‘beings and equilibrium’ reflect a general spiritual concern to which 237(b) of the Act does not apply. There is no evidence of a specific area or site to which the concern relates;
·The area has been subject to prior exploration and possible mining activity; and
·The Government’s regulatory regime is likely to prevent interference with any area or site of particular significance.
In relation to s 237(c), the Government party states the grant of the proposed licence is not likely to involve major disturbance to land or create rights, the exercise of which is likely to involve major disturbance to the land, because:
·The grantee party’s contentions and affidavit indicate that most of the proposed exploration activities will be low-impact and non-intrusive and ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites;
·The Government party’s regulatory regime will avoid major disturbance to land and waters;
·Proposed endorsements and conditions require rehabilitation of the land following exploration;
·The proposed licence has been subject to prior exploration and mining activity and is also covered to a significant extent by a petroleum permit, pastoral lease and Crown reserves 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
·There is no evidence that the area has any particular characteristics that would be likely to result in major disturbance to land and waters.
I do note that while there is evidence of prior exploration activity, the evidence of mining activity is minimal, although nothing turns on that in this particular matter.
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 in relation to the grant 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 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 into account factors that may already have impacted 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 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.
There is no evidence that the grantee party will act contrary to the regulatory regime of the Government party and the grantee party has indicated its willingness to enter into an RSHA.
The native title party contend certain community and social activities such as camping, hunting and fishing take place on the proposed licence. The native title party has not provided evidence as to the frequency, timing, participants or specific location of these activities. 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 Asia Investment Corporation, at [14]). I also note that no affidavit evidence has been produced by the native title party in support of their contentions.
To the extent that members of the native title party do carry out those community and social activities, I accept the contentions of the Government party at [38] above and have reached the conclusion that there is not likely to be direct interference.
I also accept that past and present activities, particularly exploration and pastoral activities, are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party. 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 these previous activities 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 Mardudhunera People claim is approximately 9,529 square kilometres and the proposed licence is approximately 159.8 square kilometres. The size of the area of the proposed licence in the context of the much larger native title claim also makes it less likely that exploration activity will interfere with the community or social activities described by the native title party.
In the circumstances, taking into account the evidence available, I conclude that there is unlikely to 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 DAA documentation that there are nine registered sites and four other sites within the proposed licence. However, this does not mean there may not be other sites or areas of particular significance to the native title party in the area. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The native title party’s contentions provide no content as to the nature of any ‘particular significance’ of the registered sites, or of any other sites beyond stating that ‘these sites 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 as a result of their historical occupation and observance of traditional ceremonies within the Tenement area.’
The native title party’s contentions refer to the likelihood that other significant sites exist in the area but provide no evidence or content as to the nature of any ‘particular significance’ of such sites. Even if I were to accept that there are other sites in the area which have not been identified, the native title party’s contentions themselves speak only about the sites being ‘significant’, and there is no information as to how or why sites may be of ‘particular significance’ to the native title party, as required by s 237(b) of the Act.
I accept the Government party’s contentions at [39] and the grantee party’s contentions and evidence at [23]-[25] above that, in the event of there being any areas or sites of particular significance within the proposed licence, interference with those areas is not likely.
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 Iron Duyfken at [39]; Cheinmora at [43]). In the present matter, the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of any sites, or that they are likely to be interfered with.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, 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 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. I am satisfied, based on the available evidence, that the AHA and its associated processes, together with the endorsements and condition to be placed on the proposed licence in this matter, including the RSHA conditions, are likely to prevent interference with any area or site of ‘particular significance’ in the context of exploration activities.
Taking all of these factors into account, I find there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.
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 and what was likely to be done by the grantee party (see Little at [41]-[57]).
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 at [84]). In this matter, the native title party have not offered any evidence that relates to significant, direct physical disturbance of land or waters. Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Geotech at [44]).
The native title party’s contentions presuppose that the grantee party will fully exercise the rights conferred by the proposed licence under s 66 of the Mining Act 1978 (WA). These rights are said to authorise activities including, among other things, 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. The native title party contends that these activities are likely to result in the removal of and disturbance to traditional bush tucker, bush medicine and traditional items.
The native title party also contends that, if the disturbance will have a significant impact on members of the native title party who live in and use the affected area, it might be sufficient to warrant a finding that it will constitute a major disturbance even if it would be unimportant to non-Aboriginals. In the present matter, there is no evidence that members of the native title party live in or use the proposed licence area, or any material that would support a finding that those people would be significantly affected by the grant of the proposed licence.
In this matter the native title party have provided no 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.
On that basis, I do not find it likely that major disturbance to land or waters is likely to occur in this matter, as envisioned by s 237(c) of the Act.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E08/2401 to Mineralogy Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
13 November 2013
ANNEXURE A
GOVERNMENT OF WESTERN AUSTRALIA TENEMENT ENDORSEMENTS AND CONDITIONS
ENDORSEMENTS
In respect to Water Resources Management Areas (WRMA) the following endorsements apply:
1The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2The 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.
3The grant of this licence does not include the land the subject of prior Exploration Licence 08/698. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4 The Licensee 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
5The 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.
6The 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:
7The 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:
8Advice 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 dependant vegetation of any perennial waterway, and
·30 metres from the outer-most water dependant vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water (Pilbara) Areas the following endorsements apply:
9 The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
10 All activities to be undertaken with minimal disturbance to riparian vegetation.
11 No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
12 Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (Pilbara) the following endorsement applies:
13 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.
14 The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
CONDITIONS
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 The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Coastal Waterline 5 items affected.
8 No interference with Geodetic Survey Station SSM-NMF 271, SSM-Yarraloola 53 to 58; 65; 66; 67 and mining with 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9 No exploration activities being carried out on Stock Route Reserve 9701 which restrict the use of the reserve.
0
14
0