Leedham Papertalk and Others on behalf of Mullewa Wadjari v FMG Resources Pty Ltd and Others
[2015] NNTTA 9
•12 March 2015
NATIONAL NATIVE TITLE TRIBUNAL
Leedham Papertalk and Others on behalf of Mullewa Wadjari v FMG Resources Pty Ltd and Others, [2015] NNTTA 9 (12 March 2015)
Application Nos: WO2013/0755 and WO2013/1003
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into two expedited procedure objection applications
Leedham Papertalk and Others on behalf of Mullewa Wadjari (WC1996/093) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Maincoast Pty Ltd (first grantee party)
- and -
FMG Resources Pty Ltd (second grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 12 March 2015Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance – whether acts likely to cause major disturbance to land or waters – expedited procedure attracted – expedited procedure not attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 61(2), 66
Acts Interpretation Act 1901 (Cth), s 36(2)
Land Act 1933 (WA), ss 31, 33
Racial Discrimination Act 1975 (Cth)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Waterways Conservation Act 1976 (WA)
Rights in Water and Irrigation Act 1914 (WA)
Metropolitan Water Supply, Sewerage and Drainage Act 1909 (WA)
Country Areas Water Supply Act 1947 (WA)
Water Agencies (Powers) Act 1984 (WA)
Water Resources Legislation Amendment Act 2007 (WA)
Cases:Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Cherel v Faustas Nominees’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99, (‘Cheinmora v Heron Resources’)
Cheinmora & Ors v Striker Resources & Ors [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Harvey Murray and Others on behalf of the Yilka Native Title Claimants v Drew Griffin Money and Another [2011] NNTTA 91 (‘Murray v Money’)
Jack Dann v Western Australia [1997] FCA 332; (1997) 144 ALR 1 (‘Dann v Western Australia’)
Leedham Papertalk & Ors v State Resources Pty Ltd & Anor [2012] NNTTA 126, (‘Papertalk v State Resources’)
Leedham Papertalk & Ors v West Peak Iron Ltd & Anor [2012] NNTTA 108, (‘Papertalk v West Peak Iron’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tullock v Bushwin’)
Little and Others v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FLR 576, (‘Little v Oriole Resources’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Parker v Ammon’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Parker v Iron Duyfken’)
Maureen Young on behalf of the Ngadju People v South Coast Metals Pty Ltd [2001] NNTTA 42 (‘Young v South Coast Metals’)
Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) RNTBC & Ors v FMG Pilbara Pty Ltd & Anor [2015] NNTTA 4, ('Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) v FMG Pilbara’)
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108 (‘Cooke v Dioro Exploration’)
Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (‘Nyikina & Mangala v Backreef Oil’)
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas v Northern Territory’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)
Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442, (‘Smith v Western Australia’)
Terry Cornwall & Ors v Western Australia & Ors [1997] NNTTA 47 (‘Cornwall v Western Australia’)
Ward & Ors v Western Australia & Ors [1996] FCA 1452; (1996) 69 FCR 208; (1996) 136 ALR 557, (‘Ward v Western Australia’)
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; (2002) 191 ALR 1; (2002) 76 ALJR 1098 (‘Western Australia v Ward 1’)
Western Australia v Ward [1996] FCA 993; (1996) 70 FCR 265; (1996) 141 ALR 753 (‘Western Australia v Ward 2’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd & Anor [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives of the Ms Lesleigh Bower, Corser & Corser
native title party:
Representatives of the Ms Caitlin Brandstater, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representatives of the
grantee party: Mr Ken Green, Green LegalREASONS FOR DETERMINATION
[1]On 19 June 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E70/2596 to Maincoast Pty Ltd (‘the first 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). The s 29 notice describes E70/2596 as comprising 70 graticular blocks (approximately 211.7039 square kilometres), located 46 kilometres north of Mullewa, in the City of Geraldton.
[2]On 3 July 2013, the Government party gave notice under s 29 of the Act of its intention to grant exploration licence E59/1956 to FMG Resources Pty Ltd (‘the second 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). The s 29 notice describes E59/1956 as comprising 10 graticular blocks (approximately 30.2624 square kilometres), located 55 kilometres north of Mullewa, in the City of Geraldton.
[3]An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) within 4 months of the ‘notification day’ (see s 32(3) of the Act). As explained by ss 32(3) and s 30(1)(a) and (b), the objection may be made by any registered native title claimant in respect of the relevant land or waters who is registered at four months from the notification day, provided the claim was filed before the end of three months from the notification day.
E70/2596
[4]The notification day for E70/2596 was 19 June 2013. The three month period for filing a native title claim was 19 September 2013. The four month period for lodgement of objections was 19 October 2013, and by the operation of s 36(2) of the Acts Interpretation Act1901 (Cth), the closing date for lodgement became 21 October 2013, the next working day.
[5]E70/2596 is overlapped as follows:
·the Mullewa Wadjari native title claim (WC1996/093 – registered from 19 August 1996) by 100 per cent;
·the Widi Mob native title claim (WC1997/072 – registered from 12 December 2011) by 100 per cent;
·the Wajarri Yamatji native title claim (WC2004/010 – registered from 5 December 2005) by 91.55 per cent; and
·the Amangu People’s native title claim (WC2004/002 – registered from 3 March 2005) by 8.345 per cent.
[6]On 7 October 2013, the Mullewa Wadjari native title claim group made an expedited procedure objection application to the Tribunal in relation to E70/2596. Both the Wajarri Yamatji and Amangu People native title claim groups also made expedited procedure objection applications to the Tribunal on 18 October 2013, but both applications were withdrawn on 11 June 2014. No information was provided as to why those objections were withdrawn. No expedited procedure objection application was made by the Widi Mob native title claim group and no other native title claim was filed in respect of E70/2596. As such, the Mullewa Wadjari native title claim group became the ‘native title party’ for the purposes of the inquiry into the objection to the expedited procedure against E70/2596.
E59/1956
[7]The notification day for E59/1956 was 3 July 2013. The three month period for filing a native title claim was 3 October 2013. The four month period for lodgement of objections was 3 November 2013, and by the operation of s 36(2) of the Acts Interpretation Act1901 (Cth), the closing date for lodgement became 4 November 2013, the next working day.
[8]E59/1956 is wholly overlapped by the native title claims of the native title party, as well as the Wajarri Yamatji and the Widi Mob.
[9]On 9 July 2013, the native title party made an expedited procedure objection application to the Tribunal in relation to E59/1956. The Wajarri Yamatji native title claim group also made an expedited procedure objection application to the Tribunal on 31 October 2013, but this application was withdrawn on 11 June 2014. No information was provided as to why that objection was withdrawn. No expedited procedure objection application was made by the Widi Mob native title claim group and no other native title claim was filed in respect of E59/1956. As such, the Mullewa Wadjari native title claim group is the native title party for the purposes of the inquiry into the objection to the expedited procedure against E59/1956.
The grantee parties
[10]On 30 January 2004 Maincoast Pty Ltd (the first grantee party), and Fortescue Metals Group Ltd (‘FMGL’) on behalf of FMG Resources Pty Ltd (the second grantee party), entered into an agreement which requires the first grantee party to transfer E70/2596 to FMGL (the ultimate holding company of the second grantee party) upon grant, and appoints FMGL as the attorney of the first grantee party for the purpose of achieving the grant of E70/2596.
[11]Due to this agreement between FMGL and the first grantee party, the evidence presented by the first and second grantee parties in these matter's has been presented in conjunction, for both E70/2596 and E59/1956. Therefore, I will refer to E70/2596 and E59/1956 either singularly as needed, or together as ‘the proposed licences’.
Background
[12]On 24 October 2013, I was appointed as the Member for the purposes of determining any inquiry in these matters.
[13]Preliminary conferences were convened for E70/2596 on 5 November 2013 and for E59/1956 on 19 November 2013. At both conferences the parties indicated they wished to negotiate agreements.
[14]At status conferences held on 5 March 2014 and 26 March 2014 for E70/2596, the native title party and first grantee party advised they were in the process of negotiating an agreement. At the status conference on 30 April 2014, the first grantee party requested the Tribunal make a determination in relation to the matter for E70/2596. On the same day, I set directions for that matter to proceed to an inquiry.
[15]At a status conference on 19 March 2014 for E59/1956, the second grantee party requested the Tribunal make a determination in relation to the matter for E59/1956. On the same day, I set directions for that matter to proceed to inquiry.
E70/2596 compliance
[16]In relation to E70/2596 compliance with directions (as amended by party request on 26 June 2014), parties provided the following submissions and evidence:
·Government party initial evidence on 14 May 2014 through the Department of Mines and Petroleum (‘DMP’);
·native title party contentions and evidence on 11 June 2014 (‘NTP Contentions’) including affidavits from Mr Leedham Papertalk affirmed on 9 June 2014, and Mr Douglas James Comeagain affirmed on 11 June 2014;
·first and second grantee parties’ contentions and evidence on 1 July 2014 (‘GP Contentions’)[1] including the affidavit of Mr Thomas James Weaver affirmed 30 June 2014;
·Government party contentions (through the State Solicitor's Office, (‘SSO’)) on 8 July 2014 (‘SSO E70/2596 Contentions’);
·native title party contentions in reply on 30 July 2014 (‘NTP Reply’) as outlined at [18]-[20] below; and
·grantee party contentions in reply dated 1 September 2014 ('GP reply') as outlined at [18]-[20] below.
[1] The first and second grantee parties lodged joint evidence and contentions with the Tribunal on 7 May 2014 in relation to both E70/2596 and E59/1956. Therefore, these will be known as the ‘GP contentions’.
E59/1956 compliance
[17]In relation to E59/1956 compliance with directions (as amended by party request on 26 June 2014), parties provided the following submissions and evidence:
·Government party initial evidence on 1 April 2014 through the Department of Mines and Petroleum (‘DMP’);
·native title party contentions and evidence on 7 May 2014 (‘NTP Contentions’);
·the grantee parties contentions and evidence on 1 July 2014 (‘GP Contentions’);
·Government party contentions (through the SSO) on 14 July 2014 (‘SSO E59/1956 Contentions’);
·native title party contentions in reply on 30 July 2014 (‘NTP Reply’) as outlined at [18]-[20] below; and
·grantee party contentions in reply dated 1 September 2014 ('GP Reply') as outlined at [18]-[20] below.
Further compliance in both matters
[18]The NTP Reply to the GP Contentions and SSO Contentions pertained to both E70/2596 and E59/1956. Within those contentions and by way of letter and email to parties and the Tribunal on 30 July and 1 August 2015, the native title party expressed concern about giving further evidence by affidavit and a desire to present oral evidence on-country, or to provide affidavit evidence subject to the Tribunal making directions to preserve its confidentiality pursuant to s 155 of the Act. The grantee parties and the Government party expressed their opposition to the native title party presenting further evidence, whether orally on-country or by further affidavit the subject of s 155 confidentiality directions.
[19]A listing hearing was convened on 7 August 2014 to hear the parties further in relation to the request from the native title party to provide further evidence, and the opposition to that request. At my request, on 11 August 2014 the native title party provided a copy of the proposed further affidavit evidence of Mr Leedham Papertalk it wished to include in the NTP Reply to the Tribunal, together with a draft of the s 155 confidentiality directions it wished the Tribunal to make, for my consideration. The affidavit evidence was given in support of the objection to both proposed licences. I concluded it was appropriate to accept the evidence, and to impose confidentiality orders on the affidavit evidence due to culturally sensitive content. I note this affidavit was submitted only in relation to E70/2596. On 18 August 2014, I made confidentiality directions pursuant to s 155 of the Act in relation to certain paragraphs of that further affidavit evidence of Mr Papertalk, and provided that the other parties could lodge responses to the native title party reply and evidence by close of business on 1 September 2014.
[20]The grantee party provided its response to the NTP Reply on 1 September 2014 (‘GP Reply’), together with the undated and unsworn affidavit of Mr Peter Stanley Symonds, being the sole director of the first grantee party. An identical sworn version of the affidavit was provided on 15 October, 2014. No party objected to this sworn duplicate being provided and I accepted the evidence. Mr Symonds affidavit applied to both proposed licences. The Government party did not lodge any response to the NTP Reply.
[21]On 28 August, 2014, the native title party wrote to all parties noting a member of the native title party had passed away, was referred to in the affidavit evidence of Mr Papertalk, and requested that person's name to be redacted from the affidavit evidence. No party objected to this request, and the name was redacted.
[22]The native title party has not pursued its request for an on-country oral hearing. I have considered these matters and I believe they can be adequately determined ‘on the papers’ in accordance with s 151(2) of the Act.
[23]A map was generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 14 October 2014 for comment. No party objected to the Tribunal’s use of the map.
Legal principles
[24]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.
[25]In relation to the legal principles to be applied in this matter, I adopt those outlined by President Raelene Webb QC in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15]-[21]. These principles were recently endorsed by McKerracher J in the Federal Court decision of FMG Pilbara v Yindjibarndi Aboriginal Corporation.
Evidence in relation to the proposed acts
[26]The Government party provided the following documents relating to the proposed licences:
·DMP Tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licences;
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’);
·Copies of the proposed licence applications;
·Draft Tenement Endorsements and Conditions Extracts; and
·DMP Tengraph Quick Appraisals detailing the land tenure, current and historical mining tenements, native title areas, relevant services, and other features within the proposed licences (‘DMP Quick Appraisals’).
E70/2596
[27]The Quick Appraisal for E70/2596 establishes the underlying land tenure of this proposed licence to be:
·Crown Reserve 9701 for the De Grey Mullewa Stock Route at 6.5 per cent;
·Crown Reserve 11809 for a Trigonometrical Station at less than 0.1 per cent;
·Crown Reserve 33466 for the Conservation of Flora and Fauna at 0.6 per cent;
·Crown Reserve 18020 for Water at less than 0.1 per cent;
·Crown Reserve 19392 for a Public Utility at 0.3 per cent;
·Crown Reserve 11808 for a Trigonometrical Station at less than 0.1 per cent;
·Vacant Crown Land at 4.1 per cent;
·Vacant Crown Land (No. 12695) at 1.2 per cent;
·General Lease J271217 at 0.6 per cent;
·Pastoral Lease 3114/900 (Wandina) at 89.7 per cent;
·Private Land CG 6376 at 0.5 per cent;
·Private Land CG 7624 at 0.6 per cent; and
·Road Reserve at less than 0.1 per cent.
[28]The Tribunal’s investigations revealed that Crown Reserve 33466 was created pursuant to section 31 of the Land Act 1933 (WA) as an A Class Reserve and was gazetted on 11 July 1975. It was vested in the Western Australian Wild Life Authority under section 33 of the Land Act 1933 (WA).
[29]The impact on native title of the creation of reserves, and their vesting on native title, was addressed by Gleeson CJ, Gaudron, Gummow and Hayne JJ of the High Court in Western Australia v Ward 1. Their Honours determined (at [219]) that the act of creating reserves under section 31 of the Land Act 1933 did not, in itself, extinguish native title. Their Honours went on to address the impact of the vesting of such a reserve under section 33 of the Land Act 1933, where they said (at [249]):
It follows from what has been said earlier that, because the vesting under s33 of the Land Act 1933 of a reserve in a body or person vests the legal estate in fee simple to the land in that body or person and obliges the body or person to hold the land on trust for the stated purposes, rights are vested in that body or person which are inconsistent with the continued existence of any native title rights or interests to the land. Accordingly, if, pursuant to the Land Act 1933, a reserve was vested in a body or person before the RDA [Racial Discrimination Act1975 (Cth)] came into operation, native title was extinguished by that vesting.
[30]Their Honours then went on to say (at [253]) that vesting a reserve under section 33 of the Land Act 1933 after enactment of the Racial Discrimination Act 1975 would be valid, but the Racial Discrimination Act 1975 would supply to native title holders a right of compensation for that which is lost upon vesting.
[31]It becomes clear that upon vesting of Reserve 33466 in the Western Australian Wild Life Authority under section 33 of the Land Act 1933, the native title rights and interests in the underlying land were extinguished. Therefore, the Tribunal has no jurisdiction to make a determination in relation to the land underlying Reserve 33466.
[32]E70/2596 is currently subject to mineral tenure including:
·two pending exploration licences overlapping at 2.9 and 100 per cent respectively;
·two general purpose leases overlapping at 0.2 and 0.7 per cent respectively;
·two miscellaneous licences overlapping at 3.2 and 0.1 per cent respectively; and
·four mining leases overlapping between 1.9 and 3.2 per cent.
The mining, miscellaneous and general purpose leases are all held by Mount Gibson Mining Limited (‘the Mount Gibson tenements’), and further comment is made about the effect of these leases at [66] onwards of this decision. Evidence from the native title party suggests that those tenements have been subject to mining activities by Mount Gibson Mining Limited. The Government party, through DMP, has confirmed to the Tribunal and parties that on the death of these underlying tenements, the holder of the exploration licence for E70/2596 'can apply to have the relinquished ground amalgamated into the Exploration Licence...at which point the amalgamation application will be sent through the expedited procedure'. As such, there is no automatic right for the grantee parties in the current matter to be granted the ground underlying these tenements, and they would need to go through a fresh s 29 process, and then Tribunal arbitration if parties were unable to reach agreement in that fresh s 29 process. E70/2596 has previously been subject to the following mineral tenure:
·eight surrendered exploration licences existing between 1982 and 2003, overlapping between 0.1 per cent and 93.8 per cent; and
·one cancelled temporary reserve existing between 1962 and 1992, overlapping by 61.1 per cent.
[33]The Quick Appraisal outlines the following services located on E70/2596:
·one unspecified/unknown (undeveloped) deposit (Nunierra Range);
·four open pit (shut) mines (Tallering Peak T1, Tallering Pit T6A+B (incl T3), Tallering Peak T4 and Tallering Peak T2);
·one prospect or undeveloped drill hole (North Ridge);
·32 tracks;
·one aircraft landing ground;
·one airfield runway; and
·three fence lines.
[34]The report from the DAA Database shows the following registered Aboriginal sites on E70/2596:
·Tallering Peak (site ID 4454, ceremonial, mythological, repository/cache, closed access, male only access);
·Greenough River (site ID 24761, mythological, open access, no gender restrictions);
·Bangemall Creek-A-1001 (site ID 30060, artefacts/scatter, open access, no gender restrictions);
·FL01_12001 (site ID 31721, artefacts/scatter, open access, no gender restrictions);
·FL01_12002 (site ID 31722, artefacts/scatter, open access, no gender restrictions);
·FL01_12003 (site ID 31723, artefacts/scatter, open access, no gender restrictions);
·FL01_12004 (site ID 31724, artefacts/scatter, open access, no gender restrictions);
·FL01_12005 (site ID 31725, artefacts/scatter, open access, no gender restrictions); and
·FL01_12006 (site ID 31726, artefacts/scatter, quarry, open access, no gender restrictions).
[35]The report from the DAA Database also shows the following 'other heritage places' located on E70/2596:
·Tallering Rockshelter (site ID 19840, artefacts/scatter, rockshelter, open access, no gender restrictions);
·TPAS – p68 (site ID 26584, artefacts/scatter, open access, no gender restrictions);
·TPAS – 01 (site ID 26585, artefacts/scatter, open access, no gender restrictions); and
·TP Isolated Find pTP017s (site ID 26586, no type description, open access, no gender restrictions).
[36]There do not appear to be any Aboriginal communities within the proposed licences, however, the Aboriginal community of Wandanooka is approximately 22.75 kilometres south of E70/2596.
[37]The Draft Tenement Endorsement and Conditions Extract indicates E70/2596 will be subject to the standard four conditions (1-4) imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Bushwin [11]-[12]), and a further eleven conditions. These fifteen conditions are:
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
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 mining on Trigonometrical Reserves 11809, 11808 and Water Reserve 18020.
8.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained, with the concurrence of Minister for Environment, before entering or commencing any prospecting or exploration activity on Conservation of Flora and Fauna Reserve 33466.
9.The rights of ingress to and egress from Miscellaneous Licence 70/60 and 70/69 being at all times preserved to the licence and no interference with the purpose or installations connected to the licence.
10.No interference with Geodetic Survey Station R 394, R 394T, NUNIERRA, YAL96, HY120, HY 121T, HY 121 and YAL143 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
11.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.
12.No mining on or under a strip of land 100 metres wide with the proposed railway line easement as the centreline and no materials being deposited or machinery or building being erected on such strip.
13.Blasting operations being controlled so that no damage or injury can be caused by fly rock, concussion, vibration or other means.
14.No use of the Mine private haulroad at any time for any purpose without the written approval of the Mt [Mount] Gibson Mining Ltd executive.
Consent to mine on De Grey Mullewa Stock Route Reserve 9701 given subject to the following:
15.No mining operations being carried out on De Grey Mullewa Stock Route Reserve 9701 which restrict the use of the reserve.
[38]The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted for E70/2596:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 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.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The Licensee’s attention is drawn to the provisions of the:
· Water Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
8.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
9.All activities to be undertaken with minimal disturbance to riparian vegetation.
10.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
12.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.
E59/1956
[39]The Quick Appraisal for E59/1956 establishes the underlying land tenure of the proposed licence to include:
·Pastoral Lease 3114/900 (Wandina) at 99.5 per cent, and
·Road Reserve (Carnarvon Mullewa Road) at less than 0.1 per cent.
[40]E59/1956 is currently subject to no overlapping mineral tenure, but has previously been subject to the following mineral tenure:
·eleven surrendered or forfeited exploration licences existing between 1982 and 2011, overlapping between 0.4 per cent and 100 per cent;
·eight surrendered mineral claims existing between 1974 and 1975, overlapping between less than 0.1 per cent and 4 per cent, and
·one cancelled temporary reserve existing between 1962 and 1992, overlapping by less than 0.1 per cent.
[41]The Quick Appraisal outlines the following services located on E59/1956:
·one prospect or undeveloped drill hole (Tallering/Royal);
·one geodetic survey station (HY40);
·two minor roads (including the Mullewa Carnarvon Road);
·nine tracks;
·two fence lines; and
·one well/bore with windmill (Deep Well).
[42]The report from the DAA Database shows there is one registered site located in E59/1956 (Tallering Peak (site ID 4454, ceremonial, mythological, repository/cache, closed access, male only access)) and no ‘other heritage places’. This site reference refers to the overlap of a relatively small part of the Tallering Peak buffer zone, with E59/1956. The remainder of the buffer zone falls almost entirely within E70/2596.
[43]The Draft Tenement Endorsement and Conditions Extract indicates E59/1956 will be subject to the standard four conditions (1-4) imposed on the grant of all exploration and prospecting licences in Western Australia (as referred to at [37] of this decision), and a further three conditions which are:
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made; prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the licence; or
· registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.No interference with Geodetic Survey Station HY 40 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
[44]The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) for E59/1956 are also noted:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 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.
3.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.
In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
4.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
5.All activities to be undertaken with minimal disturbance to riparian vegetation.
6.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
7.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
8.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
9.The Licensee’s attention is drawn to the provisions of the:
· Water Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
10.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
11.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances 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:
12.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
13.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
Native title party contentions and evidence
s 237 (a)
[45]The native title party’s contentions (at 9-27) are substantially the same (with some minor variations) in relation to community and social activities conducted on both of the proposed licences, so I will address them collectively.
[46]They refer (at 10) to the native title party’s regular four-day ‘hunting weekends’ within the proposed licence, as well as on the lands bounded by Geraldton, Nerramyne, Yuin Station and Yalgoo.
[47]Both sets of contentions are supported by the affidavits of Mr Leedham Papertalk and Mr Douglas Comeagain. As noted earlier in this decision, in relation to E59/1956, Mr Papertalk and Mr Comeagain affirmed their affidavits on 5 May 2014. In relation to E70/2596, Mr Papertalk affirmed his affidavit on 9 June 2014 and Mr Comeagain affirmed his on 11 June 2014.
[48]Mr Papertalk deposes that he is a senior initiated man and has the right to speak on behalf of the native title party (at 3 of the E59/1956 affidavit and at 2 of the E70/2596 affidavit). He attests he is familiar with the proposed licences and visits the areas on a regular basis (at 4-5 of the E59/1956 affidavit and at 3-4 of the E70/2596 affidavit). Mr Papertalk is a named applicant of the native title party and I accept that he has authority to give evidence in this matter.
[49]Mr Comeagain also deposes that he is a senior initiated man and has the right to speak on behalf of the native title party (at 3 of the E59/1956 affidavit and at 2 of the E70/2596 affidavit). He attests he is familiar with the proposed licences (at 4 of the E59/1956 affidavit and at 3-5 of the E70/2596 affidavit). Mr Comeagain is a named applicant of the native title party and I accept that he has authority to give evidence in this matter.
[50]The contentions note the following details regarding the native title party’s community and social activities during the course of ‘hunting weekends’:
·The hunting weekends involve activities such as foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children (at 11, also at 12 of Mr Papertalk’s E59/1956 affidavit and at 11 of Mr Papertalk’s E70/2596 affidavit);
·The hunting weekends occur on an almost weekly basis (if weather permits). Although known as ‘hunting weekends’ amongst the Mullewa Wadjari community, the hunting trips do not always occur on the same days of the week nor do they always include Saturday and Sunday (at 13, also at 13 of Mr Papertalk’s E59/1956 affidavit and at 12 of Mr Papertalk’s E70/2596 Affidavit);
·Generally around 90 per cent of the Mullewa Wadjari community members attend the weekly hunting weekends, which usually amount to more than 100 people travelling on country in more than twenty 4WD vehicles. The native title party encourages a high child to adult ratio on these hunting weekends because one of the important objectives is to educate the children about the native title party’s customs and traditions (at 13, also at 14-16 of Mr Papertalk’s E59/1956 affidavit and at 13-15 of Mr Papertalk’s E70/2596 affidavit);
·In addition to the community-wide hunting weekends, individual members and families of the native title party also regularly travel within and across the proposed licences for hunting and gathering, foraging, fishing and camping purposes (at 14, also at 17 of Mr Papertalk’s E59/1956 affidavit and at 16 of Mr Papertalk’s E70/2596 affidavit);
·During the hunting weekends, the community members hunt for native fauna such as kangaroos, emus, wild turkeys, goannas, porcupines, blue tongue lizards and snakes. Occasionally, the members also hunt non-native species such as goats and rabbits (at 15, also at 18 of Mr Papertalk’s E59/1956 affidavit and at 17 of Mr Papertalk’s E70/2596 affidavit);
·A large proportion of the meats and foods gained from the hunting weekend are brought back to the Mullewa Wadjari community where they are shared amongst the members, including those who could not attend the hunting trip (at 16, also at 19 of Mr Papertalk’s E59/1956 affidavit and at 18 of Mr Papertalk’s E70/2596 affidavit);
·Hunted meats are also used to trade for commodities such as petrol and diesel which is used by members of the community (at 17, also at 21 of Mr Papertalk’s E59/1956 affidavit and at 20 of Mr Papertalk’s E70/2596 affidavit);
·The proposed licences are also known to the Mullewa Wadjari People as being 'rich in bush tucker', including:
§ gogola (small, green pod shaped fruit, which is very sweet);
§ jalga (bean like vegetable which can be eaten raw or cooked); and
§ the sweet sap from the Bimba trees ‘which are especially prevalent in the tenement area’,
(at 18-19, also at 22 of Mr Papertalk’s E59/1956 affidavit and at 21 of Mr Papertalk’s E70/2596 affidavit).
[51]Contentions outline that ‘the seeds of the jalga are high in nutrients and the Mullewa Wadjari People collect them by the bag-full from within the proposed licence. If the bush tucker is in season, then members of Mullewa Wadjari will visit the proposed licences ‘on almost a weekly basis’ to collect it’ (at 19-20, also at 23-24 of Mr Papertalk’s E59/1956 affidavit and at 22-23 of Mr Papertalk’s E70/2596 affidavit).
[52]Contentions also state that ‘During the hunting weekends, adults within the Native Title Party will teach the children traditional knowledge’ (including travelling to significant sites, boundaries of culturally restricted areas, location of bush medicine, food and water, cooking techniques, use of tools, reading the sky, traditional language and culture, dreamtime stories, the proper use of tools for hunting and cooking, and maintaining a balance between traditional and western lifestyles) (at 21, also at 25 of Mr Papertalk’s E59/1956 affidavit and at 24 of Mr Papertalk’s E70/2596 affidavit).
[53]Mr Comeagain deposes (at 13 of his E70/2596 affidavit), that younger members of the native title party also hunt and camp around Tallering Peak.
[54]The native title party also provides contentions and evidence regarding the native title party’s worship at Tallering Peak and old law grounds on the proposed licences:
·Members of the native title party 'still worship at Tallering Peak' and have worshipped in the past at old law grounds situated within the proposed licences (at 23, also at 32 of Mr Papertalk’s E59/1956 affidavit and at 31 of Mr Papertalk’s E70/2596 affidavit);
·Members of the native title party have a strong spiritual connection with Tallering Peak as they believe the spirits of their ancestors, in particular medicine men and initiated law men, reside there (at 28 and 30 of Mr Papertalk’s E59/1956 affidavit and at 27 and 29 of Mr Papertalk’s E70/2596 affidavit, also at 11 and 14 of Mr Comeagain’s E70/2596 affidavit) - Mr Papertalk also refers to special activities which occurred on part of the proposed licence (at 8-13), and these are noted and covered by the confidentiality orders.
·Mr Comeagain deposes (at 13 of his E59/1956 affidavit and at 14 of his E70/2596 affidavit) that he worships at special places around Tallering Peak, including places where the spirits of the native title party’s ancestors reside, and at places where the important mythical snake (Bimbara) resides (one of which is referred to in Mr Papertalk's Reply affidavit and which is covered by confidentiality orders);
·Mr Comeagain states that the old law grounds in the proposed licences are not now used for initiations or other big ceremonies, but that senior law men from other groups in Western Australia have requested the native title party reopen the law grounds to use for ceremonies once again (at 16 of Mr Comeagain’s E59/1956 affidavit and at 17 of Mr Comeagain’s E70/2596 affidavit);
·Mr Comeagain deposes that he and other senior initiated men of the native title party 'still worship at special places located around Tallering Peak' (at 14 of Mr Comeagain's E70/2596 affidavit and see also 13 of his E59/1956 affidavit). He also deposes they used the old law grounds in the proposed licences in the past (at 23 of Mr Comeagain’s E59/1956 affidavit and at 24 of Mr Comeagain’s E70/2596 affidavit).
[55]The native title party contend (at 25-26) that if exploration activities such as those contemplated by s 66 of the Mining Act are carried out on the proposed licences, there is a real chance or risk that such activities will interfere directly with the carrying on of the native title party’s community and social activities, in particular:
·hunting, gathering, fishing, camping and the teaching of laws and customs to children;
·the balance of wildlife and food sources around the proposed licences which will directly interfere with hunting, foraging and fishing activities;
·worship activities currently undertaken by the native title party at various sites, including Tallering Peak and previously at the old law grounds situated within the proposed licences; and
·if land on the proposed licences is damaged, the native title party will have to travel further out in order to hunt and gather food and resources.
s 237(b)
[56]The contentions and evidence relating to E59/1956 and E70/2596 have much in common in relation to s 237(b). However, I note that the contentions and evidence relating to registered sites on the proposed licences are specific to each proposed licence. Where contentions and evidence are specific to one proposed licence or the other I will identify this as so, and where contentions and evidence are the same for the proposed licences I will address them together.
[57]The contentions addressing sites or areas of particular significance specifically in relation to E59/1956 (outlined at 28-45), in summary state:
·The Tallering Peak site (see [42]) is on the DAA Register (at 29);
·The fact that a site is not recorded on the DAA Register does not mean that other sites do not exist on the proposed licence (at 31); and
[58]The native title party state there are waterholes, campgrounds and law grounds in the proposed licence which are important to them (at 32, and also at 15 of Mr Comeagain’s E59/1956 affidavit) - in relation to this part of the contentions and evidence, it is very similar to that provided in relation to E70/2596 (as noted in dot point three at [59] below). In broad terms then, these types of sites are attributed to both proposed licences. The grantee party has taken issue with this, suggesting that the contentions and evidence should be given little weight because of this approach. If that was all that had been said about sites and areas on the proposed licences, I would agree with the grantee party. However, the native title party extend these broad characterisations with further particulars specific to each proposed licence (as outlined later throughout this decision). As such, I accept the native title party's broad assertion that these types of sites and areas exist on both licences, but note that different levels of information and evidence are provided in relation to each area and site, and I give each the appropriate weight and consideration, as outlined further in this determination.
[59]The contentions addressing sites or areas of particular significance specifically in relation to E70/2596 (outlined at 28-46), in summary state:
·There are nine sites on the DAA Register (at 29) (see [34] for the full list of registered sites);
·The fact that the DAA Register does not record any additional sites does not mean that other sites do not exist on the proposed licence (at 31);
·There are waterholes, campgrounds and law grounds in the proposed licence which are important to the native title party (at 32, and also at 16 of Mr Comeagain’s E59/1956 affidavit);
·There is a cave located approximately five kilometres north of the Tallering Peak mine site which contains artefacts and was occupied by the native title party’s ancestors prior to European settlement (at 32, and also at 16 of Mr Comeagain’s E70/2596 affidavit) - I note these approximate co-ordinates place the cave near to the De Grey Mullewa Stock Route Stock Route which crosses through E70/2596 and along the northern boundary of E70/2596;
·There exists a waterhole (which is named in Mr Papertalk's reply affidavit but which is covered by confidentiality orders) which is occupied by the Bimbara and spirits of the native title party’s ancestors which must not be entered by anyone except an initiated man (at 32, and also at 39 of Mr Papertalk’s E70/2596 affidavit); and
·There are other places within E70/2596 that are known to Mr Papertalk and other initiated men of the native title party that they have not sought to have recorded, as registration of those sites would lead to unsuitable people visiting those sites (at 33, also at 42 of Mr Papertalk’s E70/2596 affidavit).
[60]I note that there are also four ‘other heritage places’ listed on the DAA Register for E70/2596 (see [35]), however, the native title party contentions or evidence do not specifically refer to these. I am not able to determine whether the sites mentioned by Mr Comeagain (see [59]) are the same as any of the registered sites or ‘other heritage places’ recorded on the DAA Register but, when looked at in conjunction with the volume of registered sites and ‘other heritage places’ recorded on the DAA Register for E70/2596, it lends credence to the native title party’s assertion that there are various sites which are important to the native title party on this proposed licence.
[61] In relation to Tallering Peak (as a broad geographical area, rather than just 'the peak' of that feature), the native title party provides the following contentions and evidence:
·Tallering Peak is a site of particular significance to the native title party as they believe the spirits of their ancestors reside there, and the native title party still worship at Tallering Peak (at 33-34 of the E59/1956 Contentions and at 34-35 of the E70/2596 Contentions; see also 28 and 32 of Mr Papertalk’s E59/1956 affidavit and 27 and 31 of Mr Papertalk’s E70/2596 affidavit, as well as 11 of both Mr Comeagain’s affidavits);
·Mr Papertalk's Reply affidavit (at 4-8) outlines that worship activities are highly confidential to initiated men within the native title party;
·Mr Papertalk also attests that the native title party believe the spirits of medicine men and initiated law men return to Tallering Peak upon their deaths (at 30 of Mr Papertalk’s E59/1956 affidavit and at 29 of Mr Papertalk’s E70/2596 affidavit);
·The stories associated with Tallering Peak are still passed on to younger generations within the native title party (at 35 of the E59/1956 Contentions and at 36 of the E70/2596 Contentions; see also 31 of Mr Papertalk’s E59/1956 affidavit and 30 of Mr Papertalk’s E70/2596 affidavit); and
·Significant damage is alleged to have occurred to Tallering Peak (in the narrower sense of 'the peak' of that site) due to the activities of a ‘mining company’ (which is not either of the grantee parties), which has resulted in:
the native title party facing negative repercussions of their failure to protect the land (at 36(i) of the E59/1956 Contentions and at 37(i) of the E70/2596 Contentions);
the native title party belief that their community is likely to suffer more sickness and deaths if it doesn’t do everything possible to protect sacred sites in the proposed licences (at 36(ii) of the E59/1956 Contentions and at 37(ii) of the E70/2596 Contentions); and
the native title party being 'vehemently opposed' to the grantee parties being granted the proposed licences (at 36(iii) of the E59/1956 Contentions and at 37(iii) of the E70/2596 Contentions).
[62]To give context to the native title party’s opposition to the grant of the proposed licences, in his affidavits Mr Papertalk provides more detailed evidence regarding the native title party’s experience of the alleged damage to Tallering Peak by the ‘mining company’ and the consequences the native title party believes have resulted, as follows:
·The summit of Tallering Peak was drastically altered by the mining activities of the ‘mining company’ despite Tallering Peak being a registered site on the DAA Register at that time and the request from the native title party for the mining activities to cease (at 33-35 of Mr Papertalk’s E59/1956 affidavit and at 32-34 of Mr Papertalk’s E70/2596 affidavit);
·This damaged the native title party’s spiritual connection to country and the dreamtime spirits (at 37 of Mr Papertalk’s E59/1956 affidavit and at 36 of Mr Papertalk’s E70/2596 affidavit); and
·The native title party believes that the spirits are angry at them as traditional custodians for allowing the damage to occur, and believe some members of the native title party community died as a result, including some senior initiated men (at 38-39 of Mr Papertalk’s E59/1956 affidavit and at 37-38 of Mr Papertalk’s E70/2596 affidavit).
[63]In relation to the significance of the waterholes, camps, law grounds and the presence of the Bimbara spirit on the proposed licences, the native title party contends:
·Significant waterholes are located within the proposed licences (at 38 of the E59/1956 Contentions and at 39 of the E70/2596 Contentions), and Mr Comeagain deposes:
some exist approximately five kilometres north-east of Tallering Peak in an area known by the native title party as the Grass Flats, which is within E70/2596 (at 27 of Mr Comeagain’s E70/2596 affidavit); and
some exist approximately 10 kilometres north-east of Tallering Peak within E59/1956 (at 26 of Mr Comeagain’s E59/1956 affidavit);
·The waterholes are of particular significance to the native title party as they believe they contain the spirits of their ancestors and are surrounded by ancestral campsites (at 39 of the E59/1956 Contentions and at 40 of the E70/2596 Contentions; see also 26 of Mr Comeagain’s E59/1956 affidavit and 28 of Mr Comeagain’s E70/2596 affidavit);
·The native title party has a strong spiritual connection to the waterholes on the proposed licences and believes that after death, the spirits of the deceased travel into such water bodies and eventually settle in the land itself, so it is important that these water bodies are not disturbed or damaged (at 40 of the E59/1956 Contentions and at 41 of the E70/2596 Contentions);
·Mr Comeagain deposes the spirits of the native title party’s ancestors and the Bimbara watch over the country from those waterholes and the native title party are required to check on the rockholes and that the permanent springs still have life. He deposes the rockholes were covered with rocks by the native title party’s ancestors to conceal and protect them. Mr Comeagain also states that he and other initiated men go to these sacred places because if they don’t fulfil their duties to properly care for the places, the Bimbara and the spirits will punish the community by causing sickness and death (at 25-27 of Mr Comeagain’s E59/1956 affidavit and at 26-29 of Mr Comeagain’s E70/2596 affidavit);
·The water bodies form a vital part of the native title party’s dreamtime stories, including the depiction of a man-like spirit snake named Bimbara who can do good things for the native title party such as provide water, fill the land with plants and animals, and encourage the growth of flora and fauna. The native title party’s belief system teaches that the descendants of these spirits will experience misfortune, ill health and possibly death if a watercourse or waterhole housing the Bimbara is disturbed (at 41 of the E59/1956 Contentions and at 42 of the E70/2596 Contentions, also at 40 of Mr Papertalk’s E59/1956 affidavit and at 39 of Mr Papertalk’s E70/2596 affidavit);
·Mr Papertalk deposes that there are law grounds within the proposed licences where the native title party’s ancestors camped, prepared for and carried out initiation ceremonies. He deposes he and other initiated men know where they are, as they look after and protect them by visiting them and making sure no damage has been done or the wrong people have been there so that the community won’t suffer illness or trouble from the Bimbara and ancestral spirits (at 41-42 of Mr Papertalk’s E59/1956 affidavit and at 40-41 of Mr Papertalk’s E70/2596 affidavit);
·The nature of some sites within the proposed licences are such that even non ground disturbing work may cause interference with sites to a level that is distressing to the native title party, and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(b) of the Act (at 42 of the E59/1956 Contentions and at 43 of the E70/2596 Contentions);
·Despite the protections afforded by the Aboriginal Heritage Act, damage as a result of mining activities has already materialised at Tallering Peak. The native title party believes in that situation, since it failed to fulfil its duty to protect the sacred site, that the death of several members of the native title party was the result of that failure (at 43 of the E59/1956 Contentions and at 44 of the E70/2596 Contentions); and
·The significant sites existing within the proposed licence cannot be adequately protected by the Aboriginal Heritage Act because their locations are unknown to the grantee party (at 44 of the E59/1956 Contentions and at 45 of the E70/2596 Contentions).
s 237(c)
[64]In addressing the issue of major disturbance of land or waters, the native title party contentions state (at 46 of the E59/1956 Contentions and at 47 of the E70/2596 Contentions) that regard should be had to:
·the importance of the waterholes in the proposed licences and their significance in Dreamtime stories;
·the significance of the old law grounds and camp sites within the proposed licences to the native title party;
·the significance of the cave located in E70/2596 containing pre-European settlement artefacts of the native title party’s ancestors;
·the frequent use of the proposed licences and surrounding areas for travel, hunting and gathering of bush tucker by the native title party;
·the use of the areas of the proposed licences for the education of younger members of the native title party;
·the special significance of Tallering Peak to the native title party; and
·the existence of unregistered sites in the proposed licence areas that are unknown to the grantee party.
Grantee party contentions and evidence
[65]The grantee parties provided a statement of contentions in relation to both E59/1956 and E70/2596, dated 1 July 2014, as well as the affidavit of Mr Thomas Weaver, the Native Title Manager for FMGL, affirmed on 30 June 2014. The second grantee party is a wholly-owned subsidiary of FMGL and it appears that FMGL determines the overarching policies and procedures under which its subsidiaries operate.
[66]The grantee parties point out (at 4.4 of the GP Contentions) that 2,205.93 hectares of E70/2596 is overlapped by tenements already granted by DMP - as noted at [32] of this decision, these are the Mount Gibson tenements. The grantee party make the point that, pursuant to s 57(2c)-(2ea) of the Mining Act, the areas of those current tenements cannot be included in the grant of the proposed licences, which reduces the area of E70/2596 which will be available to the first grantee party. I note that examples of the Mount Gibson tenements are M70/1063-I, M70/896-I, M70/1064-I, G70/192 and others, including two miscellaneous licences and two general purposes leases, as outlined at [32].
[67]The GP Contentions also point out that it is unclear whether many of the sites (registered or unregistered) said to be within E70/2596 (including Tallering Peak) lie within those areas that overlap the Mount Gibson tenements (at 9.6). I note Tribunal mapping indicates that all the ‘other heritage places’ and the following registered sites listed as lying within E70/2596 actually lie partially within the Mount Gibson tenements (for a full list see [34] and [35]):
·Tallering Peak (site ID 4454, ceremonial, mythological, repository/cache, closed access, male only access);
·FL01_12001 (site ID 31721, artefacts/scatter, open access, no gender restrictions);
·FL01_12002 (site ID 31722, artefacts/scatter, open access, no gender restrictions);
·FL01_12003 (site ID 31723, artefacts/scatter, open access, no gender restrictions);
·FL01_12004 (site ID 31724, artefacts/scatter, open access, no gender restrictions);
·FL01_12005 (site ID 31725, artefacts/scatter, open access, no gender restrictions); and
·FL01_12006 (site ID 31726, artefacts/scatter, quarry, open access, no gender restrictions).
[68]The grantee party further contend that the area referred to as ‘Tallering Peak’ by Mr Papertalk and Mr Comeagain in their affidavits is commonly known as ‘Tallering Hill’, and it is Tallering Hill which has been mined by Mount Gibson Mining Ltd (at 9.5).
[69]The grantee parties contend that the affidavit of Mr Weaver supports the following contentions (at 6.3):
·The grantee parties are cognisant of their obligations under the AHA;
·The grantee parties have adopted processes and procedures to avoid interference with Aboriginal sites;
·The grantee parties ascribe to the Guidelines for Consultation with Indigenous People by Mineral Explorers, published by DMP; and
·The grantee parties’ policy is not to undertake ground disturbing activities without a heritage survey having been first undertaken.
[70]Mr Weaver attests the grantee parties are cognisant of their obligations under the AHA (at 10) and FMGL has an Aboriginal Heritage Department, which is responsible for ensuring that it meets its obligations under: the AHA; any agreements between FMGL and third parties; and any other areas that FMGL accepts are of particular importance to Aboriginal people (at 11).
[71]Mr Weaver goes on to outline the process FMGL uses to minimise the risk of damage to heritage sites. The process utilised by FMGL and its subsidiaries involves the requirement for the internal issue of ‘ground disturbance permits’ (‘GDPs’) before employees or contractors can undertake any ground disturbing work (at 12). According to Mr Weaver’s affidavit, various matters must be satisfied before a GDP is issued, including Aboriginal heritage (at 12). For example, Mr Weaver deposes that the following must be addressed before a GDP can be issued:
·all heritage approvals and compliance conditions under relevant legislation, heritage agreements and land access agreements must be in place;
·ensure the GDP application is wholly within areas that have been heritage surveyed for the specific purpose;
·identify whether a heritage survey is required;
·ensure that access to the GDP area is defined;
·evaluate the proximity and scope of works and assess the potential direct or indirect impact on in situ heritage sites or exclusion zones;
·check that all approvals such as those relating to s18 of the AHA are in place; and
·any other applicable items.
[72]As noted by Member McNamara in Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) v FMG Pilbara (at [71]), information about procedures and guidelines adopted by the grantee parties is of great assistance and it is open to the Tribunal to conclude that the rights conferred on the grantee parties will be exercised consistently with those procedures and guidelines. With that in mind, the question becomes whether those procedures and guidelines prevent the likelihood of direct interference with sites of particular significance, and this must be assessed on a case by case basis.
[73]According to Mr Weaver’s affidavit, FMGL is aware of the Register of Aboriginal Sites maintained under the AHA and also maintains its own record of Aboriginal heritage sites through the various heritage surveys that FMGL has carried out (at 16 and 17). FMGL maintains its own geographic information system, which uploads the information from the Register of Aboriginal Sites on a monthly basis, and also includes all the information gathered from the various heritage surveys undertaken by FMGL (at 17).
[74]The grantee parties contend they are willing to enter into Regional Standard Heritage Agreements (‘RSHAs’) with the native title party for both proposed licences, and that paragraphs 18 and 19 of Mr Weaver’s affidavit constitute such an offer (at 6.5). Mr Weaver states he is authorised by the grantee parties to enter into an RSHA with the native title party for each proposed licence (at 18 and 19). I note that the terms of the offer is that it 'may only be accepted by the Native Title Party delivering two copies of the Regional Standard Heritage Agreement to FMG, marked for my attention and otherwise signed by the Native Title Party prior to any determination by the Tribunal of the Native Title Party's objection...', in respect of both proposed licences. He also states that FMGL endorses the principles set out in the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers, published by DMP (at 20). A copy of a statutory declaration sworn by an agent of the second native title party to the effect that an executed RSHA had been sent was annexed to the Government party’s E59/1956 contentions. However, as the native title party notes (at 11.1 of their contentions in reply), that RSHA was directed to the Wajarri Yamatji People (which, as noted earlier, also overlaps these proposed licences), and not the native title party. In addition, I note the affidavit deposed that the second grantee party sent the executed RSHA in relation E59/1956 care of the Yamatji Marlpa Aboriginal Corporation (YMAC). YMAC are not the authorised representative for the native title party, but are the authorised representative of the Wajarri Yamatji people.
[75]I note the Government party have stated they intend to impose an RSHA condition on the grant of E59/1956. That RSHA condition refers to an RSHA endorsed by 'peak industry groups', and so the native title party appear to have a choice of RSHA.
[76]The Government party have added no similar RSHA condition to the grant of E70/2596. As noted above, the grantee party, through Mr Weaver's affidavit, has offered an RSHA to the native title party for this proposed licence. Member McNamara, in Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) v FMG Pilbara canvassed this point in relation to similar evidence provided by the same grantee party in that matter. At [101] he outlined (emphasis added):
...I do note that the grantee party’s offer of the RSHA is conditional on its acceptance and execution by the relevant native title party prior to any determination by the Tribunal. While the DMP Guidelines provide that the Government’s policy is to progress applications for exploration licences through the expedited procedure ‘only after it is satisfied that the explorer has formally agreed to address Aboriginal heritage concerns within the tenement application’ (including by way of an offer to enter into an RSHA), and the principles of the DMP Guidelines are endorsed by the grantee party, the policy regarding the use of the expedited procedure does not appear to have been strictly followed in this case. In these circumstances, it is difficult to conclude that the grantee party remains willing to engage with the native title parties on the basis of the RSHA.
[77]In this present matter, a determination will be made through the inquiry process. The Government party has provided an RSHA condition to be applied on grant of proposed licence E59/1956, but not on E70/2596. As such, it is not clear what heritage process, apart from the grantee parties internal processes, as described and evidenced by the grantee parties, will apply to the proposed licences, particularly E70/2596, once a determination is made by the Tribunal. In addition, an RSHA is generally considered most relevant to s 237(b) of the Act, and I am mindful that while ground disturbing activity is likely to trigger a consultation process under an RSHA, in this case, as noted above, which RSHA, if any in the case of E70/2596, may apply is in doubt. I also need to consider the extent to which non ground disturbing activity may directly interfere with sites of particular significance to the native title party. This is explored further when considering the issue of interference at [175]-[184] below.
[78]Mr Weaver has attached to his affidavit at TJW3, TJW4 and TJW5, a copy of each grantee party’s outline of proposed works, which formed part of their applications to DMP for the proposed licences. The work programs for the proposed licences state that the initial phase of exploration work will comprise:
·a literature search and analysis of previous publicly available data;
·the acquisition of aerial photography, satellite imagery, aeromagnetic or other geophysical data sets to be ortho-rectified and imported into its data management system;
·geological mapping and rock chip sampling;
·interpretation of historical, geophysical and geochemical data sets and target selection;
·administration, management and supervision; and
·gridding, access and Aboriginal heritage clearance.
[79]Further work, depending on the results from the first phase of work, may include:
·reverse circulation and diamond drilling;
·interpretation, resource estimation and technical reporting; and
·metallurgical testing.
s 237(a)
[80]The grantee parties contend the grant of the proposed licences will not directly interfere with the community and social activities of the native title party for the following reasons (at 10.3):
·Due to the overlap of the Mount Gibson tenements, the affidavits of Mr Papertalk and Mr Comeagain in relation to E70/2596 do not definitively state the native title party undertakes any community and social activities within E70/2596 (at 10.3(1)) - my understanding of this contention is that the grantee parties are referring to activities within the grantable portions of the proposed licences (that is, those portions which do not fall within the Mount Gibson tenements);
·To the extent activities not involving worship at Tallering Peak (‘non-worship activities’) occur within the proposed licences, the native title party does not address:
the frequency with which they occur on the proposed licences;
the content of the non-worship activities that might occur on each occasion; and
the duration on each occasion of the carrying on of the non-worship activities on the proposed licences,
and without such information the grantee parties contend the Tribunal cannot assess any likelihood of interference arising from the grant of the proposed licences (at 10.3(2));
·The area in which the native title party’s non-worship activities occur has been assessed by the grantee parties as covering over half of the native title party’s native title claim area of 35,621.0516 square kilometres, of which the proposed licences only cover 219.84 square kilometres, which is less than 1.3 per cent of the area in which those hunting activities may occur (at 10.3(3)), and so it is unlikely that the grant of the proposed licences will interfere with the ability of the native title party to undertake those activities;
·The area of the proposed licences has been subject to prior mineral exploration activity, as well as an underlying pastoral lease and stock route, and it is likely that these activities have impacted, and continue to affect, the extent to which community and social activities can be carried out on the proposed licence. The grant of the proposed licences would likely have an effect no more significant than the past and continuing use of the area (at 10.3(4)-(5));
·There are no Aboriginal communities in the area proposed licences (at 10.3(6));
·Hunting and mineral exploration are inherently capable of coexistence (at 10.3(7));
·Tallering Peak is located within the Mount Gibson tenements so the grant of the proposed licences is unlikely to affect the ability of the native title party to worship at Tallering Peak (at 10.3(8)); and
·The native title party has not explained the frequency of its worship activities, the duration of those activities on each occasion or what those activities comprise, and without that information it isn’t possible to conclude the grant of the proposed licences will cause direct interference with those activities (at 10.3(9)).
s 237(b)
[81]In relation to Tallering Peak, the grantee parties contend:
·Only a portion of the buffer zone for the Tallering Peak registered site lies within E59/1956. As it is a closed site, the co-ordinates for the actual site are not available so it cannot be concluded that the site actually lies within E59/1956 (at 11.5-11.8);
·It is not clear that Tallering Hill is within the buffer zone for the Tallering Peak registered site, and the evidence of Mr Papertalk and Mr Comeagain has focussed on Tallering Hill rather than the significance of the Tallering Peak registered site (at 11.8-11.9); and
·It is not possible to conclude from the native title party’s evidence that:
the Tallering Peak registered site is a site of particular significance to the native title party;
the Tallering Peak registered site is at risk of interference by the grant of E59/1956 as it is unclear whether the site itself exists within E59/1956 and the native title party evidence has not made this clear; and
Tallering Hill is not at risk of interference by the grant of E70/2596 as it is located on the Mount Gibson tenements,
(at 11.10).
This argument is largely resolved through the reply of the native title party as outlined at [122] of this decision.
[82]In relation to the two 'other heritage' sites on E70/2596 that are not located within the Mount Gibson tenements (Greenough River ID24761 and Bangemall Creek ID30060), the grantee party contends the native title party has not addressed the significance of those sites and so the Tribunal should not find those sites to be sites of particular significance (at 11.13).
[83]In relation to the native title party’s evidence and contentions regarding waterholes and law grounds located on the proposed licences, the grantee parties contend:
·Mr Papertalk makes somewhat identical statements in his affidavits for both proposed licences, stating there is a law ground and water hole in each of the proposed licences and providing no further information to assess the actual location of those sites. The grantee parties contend it is for these reasons that little weight should be given to this evidence (at 11.14) - this argument has been addressed earlier in this decision;
·The evidence provided in relation to the law grounds and water holes is insufficient to determine that they are sites of particular significance (at 11.15);
·Water holes occupied by Bimbara appear to be somewhat common with the native title party’s claim area, based upon evidence submitted by the native title party in several other expedited procedure inquiries (at 11.16);
·There is nothing in the evidence of the native title party to show that the water holes stand out as sites of particular significance in comparison to other bodies of water in the native title party’s claim area (at 11.17); and
·Mr Papertalk submitted evidence in Papertalk v West Peak Iron and in Papertalk v State Resources that ceremonial grounds exist that are still in use today by the native title party, as opposed to the law grounds in the proposed licences mentioned by Mr Papertalk as places where initiations used to be done, and there is nothing in the evidence to suggest they are currently used for any purpose (at 11.18).
[158]In relation to worship activities specifically, I acknowledge and accept that the worship activities outlined at [54] around Tallering Peak occur on the proposed licences. Due to the reasons listed at [152]-[157], I am unable to find that the grant of the proposed licences is likely to directly interfere with the native title party carrying out their worship activities. The grantee parties are aware the native title party undertakes worship activities around the Tallering Peak area. The grantee parties have also expressed a positive attitude towards communicating with the native title party. If communication occurs between the native title party and the grantee party, it seems unlikely there will be a direct interference with the worship activities of the native title party.
[159]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))
[160]The native title party contentions directed at s 237(b) of the Act are outlined at [56]-[63] in this decision.
[161]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 above, it is established in DAA documentation that within E70/2596 there are nine registered sites and four ‘other heritage places’, and within E59/1956 there is one registered site. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity.
[162]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 AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. While some sites may be administratively assessed as not being an ‘Aboriginal site’ under the AHA, those sites may still be ‘areas or sites of particular significance’ to the native title party ‘in accordance with their traditions’ as per s 237(b) of the Act.
Tallering Peak/Tallering Hill
[163]Mr Papertalk and Mr Comeagain have both deposed to the significance of Tallering Peak to the native title party. While I am aware the grantee parties have raised issue as to whether the native title party is referring to Tallering Hill or Tallering Peak when it refers to the particular significance of Tallering Peak, I accept the explanation of Mr Papertalk (for example, at 3 of the Papertalk Reply Affidavit) that Tallering Hill and Tallering Peak form the one larger geographical site. The Government party contentions for E70/2596 'accepts there is sufficient evidence to demonstrate that Tallering Peak is a "site of particular significance"' (emphasis in original). The grantee party does not accept the specific site of Tallering Peak, or the area around Tallering Peak (as for example, described on the DAA register) is a site of particular significance.
[164]Based upon the evidence provided by Mr Papertalk and Mr Comeagain about the spiritual practices associated with Tallering Peak and Tallering Hill, and the significance of the area around Tallering Peak and Tallering Hill for the traditions of the native title party, which has also been consistently referred to in evidence provided in many previous arbitral decisions of this Tribunal, I accept that Tallering Peak and Tallering Hill, and the larger geographical site as marked by the buffer zone around Tallering Peak (as shown on Tribunal mapping and the DAA Register), is a site of particular significance to the native title party.
[165]I accept the grantee parties’ argument that the geographical features 'Tallering Peak' and 'Tallering Hill' lie within the Mount Gibson tenements (this is also evident from Tribunal mapping), and those areas of land will not be included in the grant of the proposed licences. However, the larger geographical area surrounding Tallering Peak, as marked on the DAA Register, extends through the centre east portion of E70/2596, and through a smaller portion of the south west of E59/1956. About one fifth of the buffer zone is within Mount Gibson tenements, and the remaining four fifths is within the areas to be granted to the first and second grantee parties. It is registered with the DAA as being closed and male only; as such, I suggest it is a sensitive area, further supporting its status as a site of particular significance.
Water
[166]Mr Papertalk and Mr Comeagain depose that the native title party has a very strong cultural connection to the water courses located within the proposed licences and identifies the reasons for that connection (see for example [63]). The grantee parties and the Government party imply there are random references to waterholes and water related features, which contain spirits, in relation to this matter. However, I find the native title party quite specific in respect of identifying waterholes five kilometres north east of Tallering Peak in E70/2596 (the 'grass flats'), and 10 kilometres north east of Tallering Peak in E59/1956. The sworn evidence is that they contain spirits of ancestors and are surrounded by campsites. The Government party states there is no evidence the waterholes extend into the proposed licence, however, the deponents swear that they do in relation to these particular areas. These seem to be separate from the Bangmulla Pool (in E70/2596) which was referred to in the native title party evidence in reply (and marked on the Map attached to Mr Papertalk's affidavit), and which I refer to in more detail below.
[167]While the grantee parties and Government party seem to state the native title party have referred to 'waterholes' which all contain spirits which settle into the land, I read the evidence to mean these particular waterholes (at five and 10 kilometres from Tallering Peak) are the ones which they are focussing on as being of particular significance. Initiated men go to these sacred places to care for them. While I accept there is sufficient evidence to suggest these areas are important to the native title party, I do not believe that evidence is sufficient for me to conclude that these two waterholes are of particular significance to the native title party. Mr Papertalk has also identified Bangemall Pool [Bangmulla Pool] and the Greenough River in his evidence and has stated that a sacred entity lives in those waterways. The entity is named but is covered by confidentiality orders in relation to Bangemall Pool. In relation to that Pool, Mr Papertalk recounts a specific story that is associated with the Pool and the entity within the Pool, and how the story is passed on through generations. In contrast, the evidence provided in relation to the Greenough River is quite broad, the native title party has not identified why it is a site of particular significance to the native title party against the background of watercourses in general (see Cheinmora v Striker Resources at 34), and it is within an Area C Reserve. On this basis, I cannot say that the Greenough River, for the purposes of these proposed licences, is a site of particular significance to the native title party.
[168]The evidence Mr Papertalk has provided in relation to Bangemall Pool is subject to s 155 non-disclosure directions, which prevents me from disclosing details of the evidence. The evidence outlined by Mr Papertalk relates to ceremonial practices undertaken by his family members at Bangemall Pool and the significance of those practices. In my view, there is sufficient evidence before me to support a finding that Bangemall Pool is a site of particular significance to the native title party. However, native title party evidence also suggests it lies partially within E70/2596, but is wholly or largely within the Mount Gibson mining tenements – as such, I do not believe it would be interfered with by exploration activities of current grantee parties, for the reasons outlined at [66] of this decision.
[169]The only other waterhole/pool which is referred to specifically by the native title party is that marked on Mr Papertalk’s affidavit map called ‘Pool’ which is directly to the south of Bangemall Pool – there is no further evidence about the ‘Pool’ so I cannot draw any conclusion that it is a site of particular significance.
Campgrounds/Cave
[170]Campgrounds are referred to in broad terms in the native title party initial evidence as being associated with the waterholes at five and 10 kilometres north east of Tallering Peak. The grantee party and Government Reply materials raise doubts about these sites, and in Reply the native title party provide a marked up map (albeit it appears to be only a portion of E70/2596) which refers to: a) a 'cave' which is marked as being in a portion of ground which is not to be granted as part of this proposed licence; and b) to ‘caves’ near Tallering Peak. Both of these 'cave' areas appear to be within the Mount Gibson mining tenements. As such, on their own I could not conclude the campgrounds or caves are of particular significance.
Lawgrounds
[171]At 41-42 of Mr Papertalk’s E59/1956 Affidavit and at 40-41 of Mr Papertalk’s E70/2596 Affidavit, he identifies that law grounds exist within the proposed licences where the native title party’s ancestors camped, prepared for, and carried out initiation ceremonies. He states that he and other initiated men look after and protect those sites. Mr Comeagain states (at 23 of Mr Comeagain’s E59/1956 Affidavit and at 24 of Mr Comeagain’s E70/2596 Affidavit) that the law grounds have not been used for ceremonies since the mid-1970s. Mr Papertalk confirms this at 34 of the Papertalk Reply Affidavit. At 27 of the Papertalk Reply Affidavit, Mr Papertalk corrects his earlier evidence by saying that upon closer examination it appears that the law ground originally identified as being within E70/2596 is not actually within E70/2596 but slightly to the east of Bangemall Pool [Bangmulla Pool] and very close to that proposed licence.
[172]There is no further evidence provided in relation to the law ground said to be within E59/1956, and there is nothing that assists me to reach a conclusion that the law ground within E59/1956 is a site of particular significance. The law ground identified as being just outside of E70/2596 has a little more evidence provided, but like the E59/1956 law ground, there is simply insufficient evidence for me to reach a conclusion that it is a site of particular significance to the native title party. The fact that ceremonies have not been conducted at the sites since the mid-1970s does not assist the native title party but it would not be fatal if other evidence were available to demonstrate the particular significance of the sites to the native title party. However, the lack of evidence provided by the native title party leads me to find the law grounds are not sites of particular significance to the native title party for the purposes of s 237(b) of the Act.
Workshop / Red and White Ochre sites
[173]Mr Papertalk has identified a ‘workshop’ (at 21-25 of the Papertalk Reply Affidavit) and red and white ochre sites (at 56-59 of the Papertalk Reply Affidavit) that exist within E70/2596. Mr Papertalk has stated the workshop area is filled with artefacts and tools created by the native title party’s ancestors, but has provided little other information. He has not provided any information in relation to the particular significance of this area to the native title party. In relation to the red and white ochre, Mr Papertalk has said that this ochre would be used in ceremonies at law grounds in E70/2596 should ceremonies be resumed there. The workshop area appears to be within the Mount Gibson tenements, and also within a centre portion of the proposed licence which is not for grant to the grantee parties, and as such even were there sufficient evidence for me to conclude the workshop was a site of particular significance, which there is not, there would be no likelihood of interference from the grantee party activities. Similarly, with both ochre sites, there is insufficient evidence to conclude they are sites of particular significance, and they appear to be largely within the Mount Gibson tenements in any event, and so again, unlikely to be subject to interference from the activities of the grantee parties in this matter.
Interference
[174]Of assistance to the Tribunal may be information such as: are these areas visited by members of the native title party; for what purpose; how often; are the sites cared for; are they incorporated into ceremonies or other stories of the native title party; are they related to sites outside of the proposed licence? These are only some of the types of information which have been provided by native title parties in previous inquiries before the Tribunal. In essence, as much information as possible, given the resources available, can be provided about why such sites are important. The native title party is not under a compulsion to highlight a great many sites of particular significance on a tenement. A single site which is at risk of interference as per s 237(b) of the Act may suffice for the Tribunal to find that a future act should not be subject to the expedited procedure. Each matter is assessed on a case by case basis - the more information and evidence all parties can provide in relation to any assertions they make, the clearer a picture the Tribunal has in relation to the features on the proposed licence, and how they relate to the application of the expedited procedure as per s 237 of the Act.
[175]In addition, if areas are sensitive, the Tribunal may cover evidence with a non disclosure order under the Act (see s 155), as in this matter. If a written affidavit is not likely to capture the relevant information, other media may be used, such as evidence spoken on a DVD. In Ward v Western Australia Carr J said (at 26):
...where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence.
[176]As the native title party note (at paragraph 1.5 of its reply contentions), the elders of the native title party are the people with that knowledge and expertise so it is reasonable to expect that if sites of particular significance to the native title party exist within the proposed licences, they will lead the requisite evidence to support those claims.
[177]In this matter, the native title party have provided such information. They have created a picture of the site of Tallering Peak/Tallering Hill, and the area surrounding those sites, as being an area of particular significance to this native title party. This area is visited by members of the native title party, and largely falls within E70/2596. The purpose of the visits, and the importance of the area, has been outlined as including being an area where worship takes place and where the native title party spirits return. The native title party attests to the fact that the area has places which are cared for and they are important to the stories of the native title party. I accept that it has been used intensively by ancestors, and is still cared for by the native title party in present times.
[178]In relation to proposed licence E59/1956, the edge of the buffer zone around Tallering Peak does extend over the south of the proposed licence border, however, Tallering Peak is at least some several kilometres from the edge of that buffer zone border, and the overlap is not extensive. In addition, the Government party has included a condition on grant that the RSHA can be applied to that proposed licence. No such condition has been imposed by the Government party on E70/2596.
[179]The buffer zone for the Tallering Peak site, as registered on the DAA database, stretches largely through E70/2596. I accept that the geographical 'Peak' and the 'Hill' sit on the Mount Gibson tenements, and the native title party have provided information which alleges those geographical sites have been disturbed by activities of that tenement holder. I accept that the grantee parties in the current matter have played no part in any disturbance which may have been caused by other tenement holders. I also accept that the actual Peak and Hill sit on land which is not part of the grant of E70/2596. However, Tallering Peak is only some 300 metres approximately from the grantable border of E70/2596 (which is adjacent to the Mount Gibson tenements), and the grantable border is also approximately 800 metres from Tallering Hill. The Mount Gibson tenement borders stop just after Tallering Peak and so the borders of the present grantee party tenements are very near Tallering Peak, for E70/2596.
[180]I have taken into account the extensive policies and procedures outlined by Mr Weaver that the grantee parties undertake prior to engaging in any ground disturbing activities, and while I do give weight to these policies and guidelines, I am not certain they negate a real risk of interference with the Tallering Peak geographical site, particularly given the offer of an RSHA is only open to the native title party in relation to E70/2596 until this Tribunal hands down its determination in this matter. While I have no doubt the grantee party will abide by the AHA, I am not convinced that this automatically means there will not be a real risk of interference with the broader Tallering Peak area. For example, activities which the grantee party may define as non ground disturbing according to its GDP process, such as rock chip sampling, disturbance of topsoil or surface layer rock using hand held tools, may not necessarily be non ground disturbing from the point of view of the native title party given the sensitivities related to this site. In addition, I could not see whether activities such as driving across the area for the purpose of surveys was covered by the GDP process. I note the decision of McKerracher J in FMG Pilbara v Yindjibarndi Aboriginal Corporation where His Honour observed (at 76) '...that interference that may appear trivial to a person not a member of the native title party for the purposes of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.'
[181]In relation to ground disturbing activities, I note the grantee party have outlined their activities for the first two years, but the activities for the further 3 or more years of the licence grant are dependent on the outcome of the first two years. Blasting operations may be envisaged by virtue of the imposition of the Government party's condition 13 (as outlined at [37] of this decision), and even if blasting did not occur, the Mining Regulations 1981 (at Regulation 20) outline the amount of earth, soil, sock, stone, fluid or mineral bearing substance which may be 'excavated, extracted or removed during the period for which the licence remains in force is 1,000 tonnes' with further amount requiring the Minister's approval.
[182]As President Webb QC noted in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [18]):
As explained in Parkerv Ammon at [35], whilst the Tribunal is entitled to have regard, and give considerable weight, to the Government party’s site protection regime (relevantly in this matter, the provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’)), this does not mean that in all cases the protective regime will be adequate to make interference unlikely under s 237(b). This approach was approved by Siopis J in Parker v Western Australia at [18].
[183]In addition, the Tribunal examined this type of question in Young v South Coast Metals (at [57]) where the conclusion was:
...the issue then becomes one whereby the grantee may not have to be in breach of section 17 of the Aboriginal Heritage Act 1972 to “interfere” with the site. I am of the view that the concept of “interference” in section 237(b) is of potentially wider import than the proscribed activities in section 17. For example, the driving of vehicles, including heavy machinery, over [a DAA registered site], may not result in a breach of section 17, but it could result in interference pursuant to section 237(b) depending on the circumstances.
[184]I accept the grantee parties are aware of the Tallering Peak site as registered on the DAA database, and they confirm they are aware of their obligations under the AHA in relation to this site. However, the grantee parties also note the co-ordinates of this site are not known as it's a closed site. Given the sensitivities around this Tallering Peak site, I am not convinced that interference for the purposes of s 237(b) of the Act would not occur within the buffer zone around Tallering Peak which lies on the grantable portion of E70/2596, without negotiations between the grantee parties and the native title party.
[185]Taking all of these factors into account, I find there is a real risk of interference with sites of particular significance on E70/2596 as a result of the grant of the proposed licences, as envisioned by s 237(b) of the Act, but not on E59/1956.
Major disturbance to land and waters (s 237(c))
[186]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 v Oriole Resources at [41]-[57]).
[187]The native title party contentions directed at s 237(c) of the Act are outlined at [64] of this decision.
[188]The Government party (at 66 of both sets of contentions) states that s 237(c) is only enlivened where there is a significant, direct physical disturbance of the land or waters (by which the Act intends digging, drilling, or some other means by which land or waters are moved, removed or diverted).
[189]It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas v Northern Territory at [84]). To that extent, I agree with the Government party’s response that s 237(c) relates to significant, direct physical disturbance of land or waters.
[190]The Government party contentions note that 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 to the land, for the reasons outlined at [98] of this decision. The grantee parties’ contentions align with those of the Government party and are outlined at [85] of this decision.
[191]In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:
·there is 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
·the conditions imposed on the proposed licences deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4) and numerous additional conditions and endorsements;
·the grantee parties are willing to enter into RSHAs with the native title party;
·the endorsements on the proposed licences direct the grantee parties’ attention to the Environmental Protection Act 1986 (WA), the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), the Water Conservation Act 1976 (WA), the Rights in Water and Irrigation Act 1914 (WA), the Metropolitan Water Supply, Sewerage and Drainage Act 1909 (WA), the Country Areas Water Supply Act 1947 (WA), the Water Agencies (Powers) Act 1984 (WA), and the Water Resources Legislation Amendment Act 2007 (WA);
·the endorsements on the proposed licences restrict the grantee parties’ interference with water resources on the proposed licences; and
·there is no evidence that the grantee parties are likely to fail to comply with the regulatory regime.
[192]Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter, as envisioned by s 237(c) of the Act.
Determination
[193]The determination of the Tribunal is that the act which is the grant of exploration licence E59/1956 to FMG Resources Pty Ltd is an act attracting the expedited procedure, and the act which is the grant of exploration licence E70/2596 to Maincoast Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
12 March 2015
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