Koongie-Elvire Native Title Claimants/Jaru Native Title Claimants/Western Australia/JML Resources Pty Ltd
[2013] NNTTA 127
•27 August 2013
NATIONAL NATIVE TITLE TRIBUNAL
Koongie-Elvire Native Title Claimants/Jaru Native Title Claimants/Western Australia/JML Resources Pty Ltd, [2013] NNTTA 127 (27 August 2013)
Application Nos: WO2012/461, WO2012/462
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Koongie-Elvirie Native Title Claimants (WC1999/040) ('Koongie-Elvirie native title party')
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Jaru Native Title Claimants (WC 2012/003) ('Jaru native title party')
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The State of Western Australia (Government party)
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JML Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 27 August 2013
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection applications – 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), 155, 237
Aboriginal Heritage Act 1972 (WA)
Aboriginal Affairs Planning Authority Act1972 (WA)
Water and Rivers Commission Act 1985
Rights in Water and Irrigation Act 1914
Environmental Protection Act 1986
Environmental Protection (Clearing of Native Vegetation) Regulations 2004
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’)
Dann v Western Australia (1997) 144 ALR 1 (‘Dann’)
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’)
Moses v State of Western Australia (2007) 160 FCR 148 ('Moses')
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 ('Parker 1')
Parker v Western Australia and Others (2008) 167 FCR 340 ('Parker 2')
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’)
Representatives of the Ms Danica Trewern, Kimberley Land Council
Koongie-Elvirie Ms Barbra Friedewald, Kimberley Land Council
native title party
Representatives of the Ms Zoe Ramsay, KRED Enterprises Pty Ltd
Jaru native title party
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Eldon Stone, Anderson's Tenement Management
grantee party
REASONS FOR DETERMINATION
On 25 January 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 E80/4599 (‘the proposed licence’) to JML Resources 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, the grant could be done without the normal negotiations required by s 31 of the Act).
I note the grantee party representative advised that Bulletin Resources Limited had an agreement in place with JML Resources Pty Ltd to acquire the proposed licence in due course and to take over its management immediately.
| Proposed licence | Overlap between proposed licence and Koongie-Elvirie native title party claim | Overlap between proposed licence and Jaru native title party claim | Approximate size of proposed licence (km2) |
| E80/4599 | 61.62 % | 38.37 % | 227.4 |
On 25 May 2012, two objection applications against the proposed licence were lodged with the Tribunal - one by Scotty Birrell and others on behalf of the Koongie-Elvirie Native Title Claimants (WC1999/040 – ‘the Koongie-Elvirie native title party’), and one by Barbara Sturt and others on behalf of the Jaru Native Title Claimants (WC2012/003 – ‘the Jaru native title party’). The claims overlap the proposed licence in the following proportions:
The registered native title claim of the Lamboo People (WC1999/020) also overlaps the proposed licence by 0.65 per cent, but no objection was made by this claim group against the expedited procedure statement.
I was appointed by the then President, Mr Graeme Neate, on 19 December 2012 as the member for the purpose of conducting the inquiry.
The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allowed a period, after the closing date for lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objections by consent. Parties were unable to reach agreement and on 30 April 2013, the grantee party requested the matter proceed to inquiry.
The following information and evidence was provided in relation to the proposed licence in compliance with directions:
materials from DMP on 13 May 2013, including: report and plans from the Department of Indigenous Affairs (‘DIA’, now the Department of Aboriginal Affairs) Sites Register; copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; and a tengraph quick appraisal;
contentions and evidence of the Koongie-Elvirie native title party dated 10 May 2013, including an affidavit of Mr Sampi affirmed on 10 May 2013 (at Annexure A of this decision);
contentions and evidence of the Jaru native title party dated 25 June 2013, together with an affidavit of Mr Sampi affirmed on 12 June 2013 (which is not replicated here as it is in very similar terms to the 10 May affidavit), and an affidavit of Ms Ramsay affirmed 25 June 2013 (at Annexure B of this decision);
contentions from the grantee party on 5 June 2013, together with a report from the Bulletin Resources Limited Exploration Manager dated 16 May 2013; and
contentions of the Government party dated 5 July 2013, including maps and annexures.
A map was also generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 9 August 2013 for comment. No comments were received.
Parties confirmed at the listing hearing on 25 July 2013 that they had no objection to the matter proceeding to be determined on the papers.
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 principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2)
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, in particular [588]-[589]).
Evidence in Relation to the Proposed Acts
Government Party
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
·Indigenous held pastoral lease 3114/923 (Koongie Park) at 4.7 per cent
·Indigenous held pastoral lease 3114/885 (Elvire) at 58.3 per cent
·General Lease I126902 at 2.7 per cent
·Pastoral lease 3114/1242 (Ruby Plains) at 33.5 per cent
·Road reserve (for Duncan Road) at less than one per cent
There are also three Department of Water areas (SWA/15 Fitzroy River and Tributaries; SWA 29 Ord River and Tributaries; GWA 10 Canning–Kimberley) at 2.8 per cent, 100 percent and 100 per cent respectively, and the Ord River (ID/1) at 100 per cent.
Government party documentation establishes, in relation to previously granted tenements: 16 exploration licences overlapping the proposed licence area by between 0.1 and 88 per cent from 1985 to 2010 and all now surrendered, forfeited or expired. There are also 12 gold mining leases from between 1890 and 1986, all now surrendered or forfeited, and all overlapping at less than one per cent. In addition, there are: one previous miscellaneous licence granted in 1988 and expired in 1993, overlapping at 2.1 per cent; 13 mining leases between 1982 and 2004, all overlapping between less than 0.1 per cent and 1.4 per cent and all now forfeited or surrendered; 14 mineral claims between 1955 and 1985 and all now surrendered, cancelled or expired, overlapping at less than 0.7 percent; 24 prospecting licences or prospecting area tenements overlapping at between less than one per cent and six percent and all now expired, forfeited, surrendered between 1936 and 2010; and finally 33 temporary reserves all now cancelled and existing predominantly for a short period in 1980 and overlapping at between less than one per cent and 19.4 per cent.
The quick appraisal document shows services affected are: three operating mines (Ruby Plains Alluvials 1, Jubilee Creek Alluvials and Ruby Plains Alluvials 3) as well as ten undeveloped prospecting areas (New Prospect, New Prospect 2, Straight Creek, Spear Gully Halls Gully 1, Halls Gully 2, McPhee’s Creek West, McPhee’s Creek East and Emjay), one historic abandoned mine site, 29 historic mine sites, one Aboriginal community (Ngyallawilli), a number of minor roads (including Duncan Highway), several tracks, two airfield runways, eight major water courses which are non-perennial (including Black Elvire River), 69 minor water courses which are non-perennial and 25 spring/soak/rock holes. 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 area.
In relation to the Ngyallawilli community, which is noted on the quick appraisal as being an Aboriginal Community, and which appears on the Tribunal map of the proposed licence, neither of the native title parties’ has referred to this community, and the Government and grantee party have asserted there are no Aboriginal communities on the proposed licence, which has not been contested by the native title parties. As a result, I can only conclude that such a community does exist in terms of geographical mapping but that it may not be a living community at present. As such, I make no findings in relation to that community and how it relates to either of the native title parties in this matter.
The draft Tenement Endorsements and Conditions Extract 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]), in addition to the following:
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 Recreation Reserve 22789.
8.No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
In respect to Ord River Irrigation District (ID1) also subject to:
9.Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Department of Water Kununurra seven days prior to commencement of those activities.
10.Any significant waterway (flowing or not), wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Department of Water.
11.The rights of ingress to and egress from the Licence being at all reasonable times preserved to officers of the Department of Water for inspection and investigation purposes.
12.The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Department of Water's Guidelines and Water Quality Protection Notes .
13.Activities requiring the abstraction of water from any waterway, wetland or drain is prohibited unless the Department of Water has granted an abstraction licence.
14.Activities that may disrupt the natural flow of any watercourse are prohibited unless a licence has been obtained from the Department of Water.
15.Activities on any existing or designated future irrigation area, or on any strip of land within 50 metres of an irrigation channel, drain wetland or watercourse being confined to surface geological, geophysical and or geochemical surveys and drilling unless the written approval of the Department of Water is first obtained.
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 each of the proposed licences:
1.The Licensee’s attention is drawn to the provisions of the:
·Aboriginal Heritage Act 1972 and any Regulations thereunder;
·Water and Rivers Commission Act 1985 and any Regulations thereunder; and
·Rights in Water and Irrigation Act 1914 and any 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.
Grantee Party
Section 237(a)
The grantee party representative states the grant of the proposed licence is not likely to interfere or disturb the carrying on of community or social activities because ‘trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated’ (citing Rosas in support).
They go on to state the Tribunal must also take into account other factors that may have had an impact on such community or social activities and there should be a direct physical interference and not merely a spiritual dimension (citing Silver in support).
The grantee party representative also states that the general contentions of the native title parties in relation to s 237(a) focus on: access to the land, hunting game, collecting bush tucker and medicines, visiting and looking after sites. The grantee party states this is unsupported by evidence and that the statements are too general to be given any significant weight.
Section 237(b)
The grantee party representative indicates that the mechanisms of the AHA and s 63 of the Mining Act mean the grantee party is not likely to interfere with sites of particular significance by the grant of the proposed tenement. The contention is that the interference must involve actual physical interference and that the conditions to be imposed on the grant, makes interference with sites less likely to occur.
Section 237(c)
The grantee party representative states the grant of the proposed licence is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance, because of s 63 of the Mining Act and the deemed conditions imposed. The likelihood of major disturbance is to be considered from the viewpoint of the general community with regard to the perspective of the local community.
Grantee party submission (Bulletin Resources)
The exploration manager for Bulletin Resources has provided a report in support of the grantee party representative’s contentions to this matter. That report outlines the ‘numerous historical gold mines’ in the area, focusing mostly on alluvial activities with ‘some minor hard rock mining’. The submission states that ‘Bulletin’s exploration focus is finding and evaluating the source of these gold alluvials and initial exploration will focus about the areas of previous known activities. Once an exploration model has been generated, exploration may expand beyond these areas to other similar geological settings in the tenement’.
The submission states that access will be from existing tracks as vehicle access is poor outside of those tracks. Exploration ‘is typically confined to the dry months of May-November’ due to wet season difficulties, with several visits to the area each year.
Activities will include low impact geological mapping and sampling with exploration drilling depending on results of those initial activities. They note that Saw Tooth Gorge (which is referred to by the native title party) is outside the proposed licence and so will not be impacted upon. Drilling will be generally conducted on targeted areas because it is costly and conditions imposed by DMP will require rehabilitation of those areas. The grantee party outlines some examples of previous activities in the area including a one hundred tonne per day capacity mine, which has not been challenged by the native title parties. The grantee party also highlights that the creeks and surrounding areas are ‘explored each year by numerous prospectors during the dry season’. This has also not been challenged by the native title parties.
The grantee party notes they are ‘committed to building relationships and working with local Indigenous groups in its area of activity’. They state ‘in the absence of a formal Aboriginal Heritage Agreement with the KLC or KRED [native title party representatives], Bulletin will comply with the provisions of the Heritage Act and use the DIA Cultural Heritage Due Diligence Guidelines as a basis to protect cultural heritage’.
Native Title Parties
Mr Sampi provided an affidavit for each of the native title parties in relation to the objections to the grant of the proposed licence. He states ‘at a meeting of the Koongie-Elvire and Jaru native title applicants, the map of this tenement was discussed and the group decided I was the right person to speak for the country’ (at 6) and he also outlines his links with the Jaru and Koongie-Elvire native title parties. I accept that Mr Sampi has authority to speak for both native title parties in relation to this matter. He states he lives at Halls Creek community which is less than half an hour drive from the proposed licence area. Tribunal mapping confirms that the proposed licence is approximately 15-20 kilometres south of Halls Creek.
Section 237(a)
Mr Sampi makes the following assertions in relation to this matter:
‘community people go out in the exploration license area all of the time’ (at 14) ‘someone goes to the exploration license area almost every second day’.
Children are taken out to the area and the community goes to the area ‘because it is good for fishing, hunting and swimming’ (at 16).
Camping occurs around Saw Tooth Gorge and the waters around the Gorge are ‘the best for fishing’ (at 16).
He states that access to Saw Tooth Gorge is through the proposed licence area via Duncan Road past Mt Bradley – Tribunal mapping confirms the road travels in a north-south direction through the eastern portion of the proposed licence, to Saw Tooth Gorge.
When fishing the native title party catch black brim, catfish, tortoise and cherubin and ‘the fishing is very good in the exploration license area’ (at 18). Fishing occurs around the Gorge area and in the springs ‘which extend onto the exploration license area’ (at 19).
Hunting occurs for emu, turkey, black head snake, carpet snake, goanna and kangaroos (both small and large) on ‘plains...in the centre and west of the exploration license area’. The plains are ‘good feeding country for the animals with grasses they can get to very easily’ (at 20-21).
Traditional objects are made using trees in the exploration licence area, young people are taken out ‘to teach them how to make objects’ and the last time was eight months ago. Objects made include tapping sticks, boomerang and coolamon. The young people are also taught to hunt and survive on country (at 23).
There is a special black tree with long thin leaves called a boomerang tree on the proposed licence area and he has ‘taught many young people how to make boomerangs’ (at 24-26) and that same tree is used for tapping sticks. Cork wood trees are used for making coolamons. In addition, bamboo is used to make a didgeridoo which ‘children love to play with the bamboo out in the exploration license area’ (at 28). Note there is no evidence, however, that the bamboo exists particularly on the exploration licence area.
Hook spears from wood on the exploration licence area are made by ‘old people’ and used for fighting and tribal dance.
Bush medicines are collected (marlanye) whose leaves are boiled up and used. Other bush medicine is booloon and mangone (like vicks).
He was taught about bush tucker, hunting, fishing and making objects by his family on the exploration licence area.
It is ‘very important for the future of Jaru young people as it is a place they can learn how to start making some money and learn how to manage the money. In the tenement the young Jaru people also learn about traditional cultural ways so they know how to survive on their country especially how to find and catch food’ (at 32).
Section 237(b)
In relation to s 237(b), Mr Sampi states ‘there are places in the tenement area that are important to the Koongie-Elvire people’ (at 34), including:
· Special painting ‘where the old mud house is’ (at 35)
· A burial site ‘on the left side of the road where the old camp is. I think there is a fence around the burial site. This is in the Brookman area’ (at 36)
· There is a story about hunting on the exploration licence area.
I note little information is given about the hunting story, or the location of the ‘old mud house’. He states ‘some of our special places are not marked in a way the grantee would know there was something special there, if the grantee makes an agreement with us, which is the proper way to come out onto our country, we can organise for the explorer the right survey people to go out and check the country before any of the explorers workers go out there’ (at 39).
Section 237(c)
In relation to s 237(c), Mr Sampi states that:
the grantee party exploration ‘could affect the water and drive all of the fish and other animals away’ (at 41).
he knows of an explorer who left behind a ‘big hole where our old people were buried and then would not make any time of agreement to make everything right’ (at 42).
However, I note there is no evidence that the grantee party was associated with this incident.
Affidavit of Ms Ramsay
Ms Ramsay is counsel for the Jaru native title party. She outlines a series of emails and correspondence between herself and the grantee party and their representatives which outline the course of negotiations in this matter. Her conclusion in relation to that correspondence is that she believes ‘the grantee party is unlikely to enter into an agreement with the native title party for the management of Aboriginal heritage values in the event that the application is granted’ (at 9).
The attachments to Ms Ramsay’s affidavit show that: the exploration manager of Bulletin Resources Limited sent a copy of the Jaru Heritage Protection Agreement (‘HPA’) to the native title party representatives on 21 March 2013; that Ms Ramsay proposed she would need to review any comments in relation to the HPA prior to meeting with the native title party to take instructions; and the cost of holding that meeting was likely to be between $7,500 and $30,000. It is not absolutely clear whether the native title party wanted the grantee party to share the cost of that meeting but that is implied in the email exchange. There appears to be nothing else in those attachments which show or support Ms Ramsay’s contention that the grantee party is unlikely to enter into a heritage agreement in the event the application is granted.
Mr Sampi’s affidavit for the Koongie-Elvire native title party is in similar terms as that provided for the Jaru native title party.
Native Title Party Contentions
The Jaru and Koongie-Elvire native title party contentions are similar in all respects in the assertions made about the evidence in relation to s 237 of the Act, apart from, on occasion, referring to different paragraphs of Mr Sampi’s affidavits in support of those assertions or contentions. In my view nothing turns on those slight differences in general and where it does, I outline in more detail in the ‘Considering of Evidence’ paragraphs of this decision.
The biggest difference is in relation to s 237(c), where the Jaru native title party suggest that the grant of the tenement will be subject to major disturbance which includes:
The right to protect significant sites
The right to care for country (strangers coming on to country without following Jaru law)
The right to exercise cultural heritage, storytelling and ceremony.
The Koongie-Elvire people instead outline that in their view major disturbance includes the right to teach young people specific skills.
Then, both native title parties’ refer to a number of particulars in relation to s 237(c) which they feel will be subject to major disturbance on the grant of the proposed licence, and those contentions in common are:
The right to go out onto country
The right to hunt and fish on country
The right to gather produce from country
The right to teach young people culture
The right to visit historically significant places.
Considering the Evidence in context of s 237 of the Act
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 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 approach 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 grantee party’s intended activities are outlined at [27] – [30].
The native title parties evidence in relation to s 237(a) is outlined at [32] above. Native title party contentions argue that there is ‘a real chance that the future act will interfere directly with the carrying on by the native title party ... of their community or social activities’ (at 17 of the Koongie-Elvire native title party statement of contentions) and refers to various aspects of Mr Sampi’s affidavit in support of the contention that members of the native title party camp and conduct their community within the proposed licence ‘regularly’ (at 14b), as well as hunt and fish, visit country and collect traditional foods and products, and ‘teach their young people about culture and traditional ways on the tenement area’ (at 14c-e).
Mr Sampi focuses on Saw Tooth Gorge and that ‘the waters all around the Gorge are the best for fishing’ (at 16) but I note the Gorge is not within the proposed licence. While I note he includes the springs which extend onto the exploration licence area (at 19), clearly the native title party conducts these activities both on and off the proposed licence. I do note that he states the centre and west of the proposed licence are good feeding country for animals, but it is not clear whether this is the only area where such hunting can occur either on or near the proposed licence. In relation to the other activities that are said to occur on the proposed licence, it is not clear where, how frequently, or who undertakes those activities, apart from in general terms.
Government party contentions indicate there is not likely to be direct interference with the community and social activities of the native title party because:
Belonging to the country is not an activity
Living close to the proposed licence is not an activity
Conducting ‘community life’ is too broad to be of assistance
The proposed exploration activities of the grantee party will mostly be low impact and non-intrusive and any ‘ground disturbing activities (exploratory drilling) are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local aboriginal cultural concerns’ (at 46a)
The area has been subject to prior mineral exploration and possible mining activity which is likely to have affected community and social activities.
The proposed licence is almost entirely covered by pastoral lease which is likely to have interfered with native title party interests or extinguished native title rights and such native title party activities have been co-existent with these lawful activities.
There are no Aboriginal communities within the area of the proposed licence
While the activities of the grantee party and Native Title party may intersect ‘that does not mean there is a real chance of substantial interference’ (at 46e)
Hunting and exploration activity are capable of co-existence – the proposed licence is relatively small in the context of the size of the two native title party claims [although I do note the Government Party states that the proposed licence is 20% of the Koongie-Elvire Claim, which is a relatively substantial amount]
There is little prospect of access being prevented in any substantial way by the grantee party to the native title party.
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]). Based on the available evidence, and particularly the level of past mining and exploration activity in the area (which in uncontested), I cannot say it appears that exploration activities would directly interfere with the community and social activities, as they are said to occur on the proposed licence in the evidence provided.
In the circumstances, taking into account the evidence available, I am unable to conclude 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 under 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 (or 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 on the proposed licence area. However, this does not mean there may not be other sites, or areas of particular significance, to the native title parties within the proposed licence. 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 grantee party’s intentions are outlined at [27]-[30] above.
The native title parties evidence directed at s 237(b) of the Act is outlined at [34]-[35] above.
Government party contentions state that, should there be any areas or sites of significance within the proposed licence, interference with those areas is not likely because:
Mr Sampi’s affidavit ‘only establishes that Mr Sampi thinks “there might” be a burial site on the proposed tenement area’ (at 55)
Saw Tooth Gorge lies outside the proposed licence area
The special painting identified in paragraph 35 of Mr Sampi’s affidavit is located on the proposed licence but is not accepted as an area of special significance
The grantee party is aware of the existence of the special painting and has agreed to work with the native title party to avoid interfering with such sites
The area is not site rich
The mere presence of the grantee party in an area is not accepted to cause direct interference with that area and that is a matter for evidence
Any ground disturbing activities of the grantee party ‘are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect the local aboriginal cultural concerns’ (at 67b)
The area has been subject to prior exploration and possible mining activity as well as pastoral activity.
The AHA and the regulatory regime ‘are likely to prevent interference with any area or site of particular significance’ (at 67d)
The native title party contentions argue that the area is site rich and that it has ‘some significant sites’ (at 18-19). They state the Aboriginal Heritage Act definitions and coverage is more restrictive than the terms of s 237(b) of the Act, and it is possible for a grantee party to interfere with sites of particular significance as contemplated by s 237(b) of the Act without being in breach of the AHA. The native title party contentions refer to ‘the complex nature and number of sites and areas of particular significance within and around the tenement’ (at 27). The contentions indicate there are three areas of particular significance to the native title party identified in Mr Sampi’s Affidavit and they are a special painting, a burial site, and areas of historical significance. However, Mr Sampi indicates that the burial site may have a fence around it, and little detail has been provided about the other two sites (as noted above at [35]).
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 this matter, there is insufficient information for me to conclude the special painting is a site of particular significance. In addition, there is little information about the ‘areas of historical significance’ to enable me to draw any conclusions about the significance of them. In relation to the burial site, I note that even if it is located on the proposed licence, it may have a fence around it, and so even if it were a site of significance (and I do not believe there is sufficient evidence for me to conclude that), then it is unlikely it would be subject to interference by the grantee party activities.
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 protection 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 for example the summary of cases as outlined in 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 there will be interference with those sites.
In the general course of events, the regulatory regime is often held to be sufficient to minimise the risk of interference of sites. In Butcher Cheryl (at [91]), Member O'Dea noted:
If I had not had the benefit of the sworn evidence of the grantee’s deponents concerning the manner in which they intended to conduct the exploration program in relation to the proposed licence, and the steps they intended to take in order to address the issues raised by the native title party in relation to ss 237(a) and 237(b), I would not have been satisfied that the risk was remote, and indeed, it may well have been real.
In the present matter, the grantee party have provided contentions and a report about the grantee party proposed activities. The report provides information about past activities and the current condition of parts of the proposed licence. They have also indicated they are committed to building relationships with the native title parties and will access the exploration areas from existing tracks.
As such, for the purposes of s 237(b), I conclude there is not likely to be interference and the expedited procedure applies to this 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]).
The native title parties submissions in relation to s 237(c) are outlined at [36] above.
The Government party submits the grant of the proposed licence is not likely to involve major disturbance to the land or waters or create rights, the exercise of which is likely to involve major disturbance to land or waters, because:
· 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 and which will respect local aboriginal cultural concerns’ (at 75a)
· The States regulatory regime is likely to avoid major disturbance to land and waters.
· The proposed conditions requiring rehabilitation and conditions to be imposed on the proposed licence may mitigate any authorised disturbance to land and waters (at 75c).
· The area has been subject to prior mineral mining and pastoral activity
It does not appear the area has ‘any particular characteristics that would be likely to result in ‘major disturbance’ to land and waters arising given the activities being proposed by the grantee party’ (at 75e). The native title party refer to Dann in relation to the definition and scope of s 237(c) and major disturbance. The native title party contend in that context there are ‘sites which are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorised persons may not be present at them. This places a burden on local Aboriginal people to look after strangers in their country. The grant of the tenement in these circumstances will cause a major disturbance’ (at 36).
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 conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;
· Additional conditions and endorsements to be imposed, including those relating to water and those directing 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 evidence that the grantee party is likely to fail to comply with the regulatory regime.
· The past activities on the proposed licence area.
Taking into account all of these considerations, I do not find 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 licences E80/4599 to JML Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
27 August 2013
Annexure A
Affidavit of Frank Sampi
I, FRANK SAMPI...of Halls Creek Community, in the State of Western Australia, affirm:
My name is Frank Sampi. My Aboriginal name is Bindan. I am a member of the Janami skin group.
I was born of 4th on March 1948 at a place which was called Narnjiwarn a name which is connected to the Rainbow Serpent and is now known as Doon Doon.
My great great grandparents were Jaru.
My mother was a Jaru woman called Lily Brockman until she married my father and then her name became Lily Sampi, her skin group was Nabeen. Lily’s father was called Frank Brockman and was Jangala skin group and was a Jaru man. Lily’s mother was a Jaru woman called Nona Monet before she got married and was Ngoonari skin group. All of this family was Jaru and were born out at Old Town, in the Koongie area.
My real father was Jack Dickson and my step father was Michal Sampi.
I am a Native Title applicant for the Koongie Elvire Native Title Claim. At a meeting of the Koongie Elvire and Jaru Native Applicants the map of this tenement was discussed and the group decided I was the right person to speak for this country.
I know this tenement is in Koongie Elvire country, Koongie Elvire country is also Jaru country so when I say that my family is Jaru, such a statement is not inconsistent with me speaking for Koongie Elvire.
I grew up in Koongie Elvire country and have been all over this area.
Under our Law I have authority to speak about land matters.
I know the area where JML, “the grantee party”, have applied for Exploration Licence Number E80/4599 “the Exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
The area is around Saw Tooth Gorge.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
I live at Halls Creek community which is less than half an hour drive from the tenement area. If you were driving out to the exploration license area you could get out there faster than half an hour but when I go out there I often children with me who always want to stop along the way and have a look at different places and things they see on the road.
The exploration licence area falls wholly within Koongie Elvire country which means it is in Jaru country also.
Community people go out the exploration license area all the time it is a great place to take children on their holidays, whenever you have some spare time and on the weekends. Someone goes to the exploration license area almost every second day.
Many Koongie Elvire and Jaru people go out to the exploration license area. I know that a lady called Rosie James went out to the exploration license area on Sunday and our daughter went out there with her children last week.
The reason my community goes out to the exploration license area is because it is good for fishing, hunting and swimming. We often camp around Saw Tooth Gorge which the exploration license area runs around the edge of. The waters all around the Gorge are the best for fishing.
To get into the Gorge area where the spring water is, we drive down Duncan Road from old Halls Creek past Mount Bradley through the exploration license area.
When we go fishing we use frozen meat for bait and catch: black brim jagalooma, big catfish binjoowinyi, short neck and long neck tortoise balarn and cherubin. There are small and bigger cherubin some people think small cherubin are sweeter but I prefer to the big ones. The fishing is very good in the exploration license area and when we go out there some of the group will fish and others will walk out on the plains.
We go fishing around the Gorge area and in the springs which extend onto the exploration license area.
The group, who go walking out on the plains or take the car further down the road, go hunting for emu wanyinwiro and turkey binglejaru. The plains are in the centre and west of the exploration license area. We can also hunt big kangaroo on the plains because the plan area is good ‘feeding country’ for the animals with grasses they can get into very easily.
On the exploration license area around the spring water areas we hunt black head snake/carpet snake boonding, goanna jarumbine and small kangaroo jujee.
There are trees that we use in the exploration license area for making traditional objects. The last time we took a group of young people out to the exploration license area to teach them how to make objects was 8 months ago. I have not made objects since then because the Art Centre people stopped paying us properly for the work we do. I think there are still young people making objects for the art centre to try and make extra money but I don’t trust them anymore.
I have taught young people how to make tapping sticks, boomerangs and coolamon so they can learn traditional cultural ways but also so they can use their skills to make some money making art and selling it. We take our young people out in our own cars to teach them things but also to teach them how to hunt and survive on country.
When we go out to the exploration license area we look for a tree which is black and has long thin leaves which is also called a ‘boomerang tree’, the wood sometimes already has a good boomerang shape it which makes it easier to carve.
I have taught many young people how to make boomerangs. It is important you know how to throw a boomerang before you make it because as you are making the boomerang you throw it to see where you have to carve into the wood and make adjustments.
We use the same boomerang tree wood for tapping sticks. Community people use the tapping sticks all of the time when anyone is singing for example at church or any other time people get together and sing, traditional way or other way.
There are corkwood trees on the exploration license area which is good for making coolamons to carry babies or hold other things in.
We collect the bamboo and make an instrument like a digereedoo which can be used to make musical sounds. The hardest part of getting sounds out of the bamboo is to get the circular breathing right. Children love to play with the bamboo out in the exploration license area.
Old people make hook spears from wood on the exploration license area and some people still use the hook spears for fighting and tribal dance.
There is some bush medicine which we collect out at the exploration license area call Marlanye we boil up the leaves from the tree and then put in on skin to clear up boils. Others bush medicine we collect out on the exploration license area includes Booloon, a yellow flower and Mangane leaves which works like ‘vicks’ you can buy in shops.
I was taught about collecting bush tucker, hunting, fishing and making useful objects by my family out on the exploration license area.
This tenement is very important for the future of Jaru young people as it is a place they can learn how to start making some money and learn how to manage the money. In the tenement the young Jaru people also learn about traditional cultural ways so they know how to survive on their country especially how to find and catch food.
If the grantee goes out to the exploration license area without talking to us or starting a relationship where we communicate about what is going on then this will affect our community life significantly because we need access to some of these places and rely on the area so we can pass on our cultural knowledge to our children.
AREAS OR SITES OF PARTICULAR SIGNIFICANCE
I know the exploration license area and the country around it very well. There are places in the tenement area that are important to the Koongie Elvire people.
There is a special painting in from the road which runs from Old Halls Creek which is where the old mud house is and is in the exploration license area.
There is also a burial site I think might be on the exploration license area on the left side of the road where the old camp is. I think there is a fence around the burial site. This is in the Brockman area.
There is a story about people being jealous of the hunting on the exploration license area and fighting over this country.
The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area.
Some of our places are not marked in a way the grantee would know there was something special there, if the grantee makes an agreement with us, which is the proper way to come out onto our country, we can organise for the explorer the right survey people to go out and check the country before any of the explorer’s workers go out there.
MAJOR DISTURBANCE TO LAND OR WATER
I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.
Their exploration could affect the water and drive all of the fish and other animals away.
I know of a time when an explorer started digging around a place and had not talked to us first. That explorer left behind a big hole where our old people were buried and then would not make any time of agreement to make everything right.
We need a ranger to help look after our country and we need the grantee to start a proper relationship with us before they go out onto an area we use all of the time and is so close to our community.
44.Under our law anyone who is not Jaru needs to ask permissions before they can go out on to our country.
ANNEXURE B
Affidavit of Zoe Ramsay
I, Zoe Ramsay, solicitor, of ...Broome in the State of Western Australia, affirm as follows:
I am General Counsel for KRED Enterprises Pty Ltd (”KRED”). KRED represents the Native Title Party in these proceedings.
On or about 7 March 2013, KRED assumed carriage of this matter. Annexed hereto and marked “A” is a copy of An email from the Kimberley Land Council Aboriginal Corporation (“KLC”) to Brett Clarke dated 7 March 2013 together with the attachment to that email.
On 14 March 2013, I participated in a Status Conference convened by the National Native Title Tribunal (“NNTT”) during which I undertook to provide the representative of the Grantee Party in these proceedings with a range of costs estimates for a meeting to be held with representative of the Native Title Party for the purposes of seeking instructions in relation to the Grantee Party’s application for licence application referred to by the Government of Western Australia’s Department of Mining and Petroleum (“DMP”) as E80/4599 (“Application”). The matter was adjourned on that date to allow the Native Title Party and the Grantee Party to discuss those budgets. Annexed hereto and marked “B” is a true copy of my file note made immediately after that Status Conference.
On 15 March 2013, I caused an email to be sent to Brett Clarke and Mark Csar in their capacity as representatives of the grantee party a true copy of which is annexed hereto and marked “C”.
On or about 21 March 2013 I received an email by way of carbon copy from Mark Csar on behalf of the Grantee Party to Hayley Haas of KRED. True copies of that email and its attachment are annexed hereto and marked “D”.
On or about the 28 March 2013, I received an email by way of carbon copy from Mark Csar on behalf of the Grantee Party to Hayley Haas. A true copy of that email is annexed hereto and marked “E”.
On 3 April 2013, I participated in a Status Conference convened by the NNTT. At that Status Conference, Brett Clarke appeared on behalf of the Grantee Party and undertook on that party’s behalf to respond to the email contained in annexure B. The Status Conference was adjourned to 29 May 2013. Annexed hereto and marked “F” is a true copy of my file note made immediately after that Status Conference.
On 30 April 2013, without receiving any correspondence or having any contact with the Grantee Party since 3 April 2013, I received an email from Sharon Montgomery of the NNTT which is annexed hereto and marked “G”.
I verily believe that the Grantee Party is unlikely to enter into an agreement with the Native Title Party for the management of Aboriginal heritage values in the event that the application is granted.
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