Leedham Papertalk and Others on behalf of Mullewa Wadjari v West Coast Geoscience Pty Ltd and Another
[2015] NNTTA 8
•16 February 2015
NATIONAL NATIVE TITLE TRIBUNAL
Leedham Papertalk and Others on behalf of Mullewa Wadjari v West Coast Geoscience Pty Ltd and Another, [2015] NNTTA 8 (16 February 2015)
Application No: WO2013/1283
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Leedham Papertalk and Others on behalf of Mullewa Wadjari (WC1996/093) (native title party)
- and -
The State of Western Australia (Government party)
- and -
West Coast Geoscience Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms H Shurven, Member
Place: Perth
Date: 16 February 2015Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 30(1), 31, 32(3), 77, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 66
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’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 ('FMG Pilbara v Yindjibarndi Aboriginal Corporation')
Leedham Papertalk and Others on behalf of Mullewa Wadjari v Colin David Gardiner and Laurie Dowding and Another [2014] NNTTA 110, (‘Papertalk v Gardiner’)
Leedham Papertalk and Others on behalf of Mullewa Wadjari v Boadicea Resources Ltd and Another [2014] NNTTA 90 (‘Papertalk v Boadicea Resources’)
Leedham Papertalk and Others on behalf of Mullewa Wadjari v FMG Pilbara Pty Ltd and Another [2014] NNTTA 98 (‘Papertalk v FMG Pilbara’)
Leedham Papertalk and Others on behalf of Mullewa Wadjari v Kalamazoo Resources Pty Ltd and Another [2014] NNTTA 108 (‘Papertalk v Kalamazoo’)
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, (‘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’)
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108 (‘Cooke v Dioro Exploration’)
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) 108 FCR 442; [2001] FCA 19, (‘Smith v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd & Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the Mr Andrew Bower, Corser & Corser
native title party:
Representatives of the Ms Caitlin Brandstater, State Solicitor’s Office
Government party: Mr Michael McMahon, Department of Mines and Petroleum
Representative of the
grantee party: Ms Sara Winton, McMahon Mining Title Services Pty LtdREASONS FOR DETERMINATION
[1]The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E59/1968 (‘the proposed licence’) to West Coast Geoscience Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the negotiations required by s 31 of the Act). In accordance with s 29(4)(a) of the Act, the ‘notification day’ is specified in the notice as 28 August 2013.
[2]The s 29 notice describes the proposed licence as comprising 20 graticular blocks (approximately 56 square kilometres), located 17 kilometres west of Yalgoo, in the shire of Yalgoo.
[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) which in this matter was 28 August 2013. As explained by ss 32(3) and s 30(1)(a) and (b) of the Act, the objection may be made by:
(a)any registered native title body corporate (‘RNTBC’) in respect of the relevant land or waters who is either (i) registered as an RNTBC at 3 months after the notification day, or, (ii) if the RNTBC is registered after that three month period, the RNTBC has resulted from a claim that was registered before the end of three months from the notification day; or
(b)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.
[4]The proposed licence is wholly overlapped by the Mullewa Wadjari native title claim (WC1996/093 – registered from 19 August 1996). On 10 December 2013, Leedham Papertalk and others on behalf of Mullewa Wadjari (‘the native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence.
[5]The proposed licence is also wholly overlapped by the native title claim of the Widi Mob (WC1997/072 – registered from 12 December 2011). The Widi Mob native title claim group did not make an expedited procedure objection application to the Tribunal. The proposed licence is overlapped 18.35 per cent by the native title claim of Wajarri Yamatji (WC2004/010 – registered from 5 December 2005). The Wajarri Yamatji native title claim group lodged an expedited procedure objection application on 12 December 2013 (designated Tribunal file number WO2013/1335), however, later withdrew this objection on 9 July 2014 with no agreement in place. No other native title claim was filed in respect of this proposed licence.
Background
[6]On 24 October 2013, I was appointed to be the Member for the purposes of determining an inquiry, should such be required.
[7]At the preliminary conference held on 28 January 2014, the grantee party indicated they wished to review the native title party’s preferred agreement. Consequently, the matter was adjourned to allow negotiations to occur.
[8]At a status conference on 28 May 2014, the grantee party requested the Tribunal proceed to make a determination in relation to this matter. On 30 May 2014, I set directions for the matter to proceed to an inquiry.
[9]In compliance with the directions, parties provided the following submissions and evidence: the Government party’s initial evidence on 11 June 2014 through the Department of Mines and Petroleum (‘DMP’); the native title party contentions and evidence on 9 July 2014 (‘NTP Contentions’); and the grantee party’s contentions and evidence on 23 July 2014 (‘GP Contentions’). The Government party’s contentions (through the State Solicitor's Office, ‘SSO’) were provided on 8 August 2014 (‘SSO Contentions’), two days later than their compliance date of 6 August 2014. The Tribunal sought other parties’ comments on this and no party objected to the acceptance of these late submissions. As there are no objections and I do not see the lateness of these submissions unfairly prejudicing any party, I am happy to accept them. No contentions in reply were received from the native title party.
[10]On 22 August 2014, the Tribunal sought parties’ views as to whether the matter could be determined ‘on the papers’ pursuant to s 151(2) of the Act. All parties agreed to the matter proceeding in this manner. I have considered the matter and I believe it can be adequately determined ‘on the papers’ in accordance with s 151(2) of the Act.
[11]A map was generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 9 October 2014 for comment. Following a comment from the grantee party, the Tribunal produced a second map of smaller scale and this was circulated to parties on 28 October 2014 for comment. The grantee party wished to note that, although Wolla Wolla appeared to be within the tenement boundaries, it is in fact outside the boundaries. No other party provided comments on either map.
Legal principles
[12]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.
[13]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]), which have been recently endorsed in the Federal Court in the decision of FMG Pilbara v Yindjibarndi Aboriginal Corporation.
Evidence in relation to the proposed act
[14]The Government party provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; a report and plan from the Department of Aboriginal Affairs’ (DAA) Sites Register; a copy of the tenement application; a copy of the proposed endorsements and conditions of grant; the instrument of licence; and quick appraisal documents.
[15]The Tengraph Quick Appraisal establishes the underlying land tenure of the proposed licence to be:
·Pastoral Lease 3114/662 (Gabyon) at 18.4 per cent;
·Pastoral Lease 3114/632 (Carlaminda) at 77 per cent;
·Two parcels of vacant crown land totalling 0.4 per cent; and
·Two parcels of road reserve totalling less than 0.1 per cent.
[16]The proposed licence area is also affected by the following features:
·State Infrastructure Corridor at 3.7 per cent;
·State Onshore Pipeline Licence at 0.4 per cent; and
·Pipeline Centre Line at less than 0.1 per cent.
[17]The proposed licence has previously been subject to fourteen expired, forfeited or surrendered exploration licences in operation between 1990 and 2013, and overlapping the proposed licence between 85 per cent and less than 0.1 per cent.
[18]The report from the DAA Database shows there are no registered Aboriginal sites located on the proposed licence, however, there is one ‘other heritage place’, named Salt River and Burra Lakes, recorded as a mythological site with a restricted file and boundary but no recorded gender restrictions.
[19]There does not appear to be any Aboriginal communities within or near the proposed licence.
[20]The Draft Tenement Endorsement and Conditions Extract indicates the proposed licence 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 thirteen conditions (5-17). These 17 conditions are as follows:
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 any exploration activities on State Infrastructure Corridor Reserve 48372.
8.No interference with Geodetic Survey Stations ZD9 and YAL120 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9.No interference with the optic fibre cable or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all time preserved to the owners thereof.
10.No mining within 25 metres of either side of the Gas Pipeline
11.No surface excavation approaching closer to the boundary of the Safety Zone established by condition 10 hereof than a distance equal to three times the depth of the excavation without the prior written approval of the operators of the State Mining Engineer DMP.
12.No interference with the drainage pattern, and no parking, storage or movement of equipment or vehicles used in the course of mining within the Safety Zone established by Condition 10 hereof without the prior approval of the operators of the Gas pipeline.
13.The Licensee shall not excavate, drill, install, erect, deposit or permit to be excavated, drilled, installed, erected or deposited within the Safety Zone established in Condition 10 hereof, any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever without the prior written consent of the State Mining Engineer DMP.
14.No explosives being used or stored within one hundred and fifty (150) metres of the Gas pipeline without the prior written consent of the State Mining Engineer DMP.
15.Mining on the Safety Zone established in Condition 10 hereof being confined to below a depth of 50 metres from the natural surface unless otherwise approved by the State Mining Engineer DMP.
16.The rights of ingress to and egress from the pipeline easement established in Condition 10 hereof being at all times preserved for employees, contractors and agents of the operators of the Gas pipeline.
17.Such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 for the purpose of protecting the Gas pipeline.
[21]The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit if breached) 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.
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 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.
[22]Government party contentions state (at 13) that it will also place the following condition (‘the proposed RSHA condition’) on the grant of the proposed licence:
In respect of the area covered by the licence the Licensee, if so requested in writing by Mullewa Wadjari Community, the applicants in Federal Court Application no. WAD 6119/1998 (WC1996/093), such request being sent by pre-paid post to reach the Licensee’s address, not more than ninety days after the grant of the this licence, shall within thirty days of the request execute in favour of Mullewa Wadjari Community the Regional Standard Heritage Agreement endorsed by peak industry groups (e.g. the Goldfields/South West/Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council) and offered by the Native Title Party of their representative.
Native title party contentions and evidence
[23]As I recently noted in Papertalk v Gardiner (at [19]), the native title party appears to have developed a practice of submitting contentions and affidavits based on pro forma versions of its objection applications which proceed to inquiry before the Tribunal. In this matter, no affidavit has been provided, however, the contentions lodged are very similar to those submitted in several previous matters, for example: Papertalk v Kalamazoo Resources; Papertalk v Boadicea Resources; and Papertalk v FMG Resources. As stated in Papertalk v Gardiner, contentions and evidence should be, as much as possible, focused on the specific tenement which is the subject of the particular inquiry. If similar evidence applies equally to a number of different tenements, then it weakens the argument that sites or activities specific to that area will be disturbed by activities of a grantee party to the extent required by s 237 of the Act.
s 237 (a)
[24]The native title party’s contentions (at 9-26) address the impact of the proposed licence on its community and social activities. 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.
[25]The contentions note the following details regarding the native title party’s community and social activities during the course of ‘hunting weekends’:
·‘It is common for the Mullewa Wadjari People to contact local Pastoralists and Station Managers to notify them of their plans before heading out on hunting weekends. As a result, the Mullewa Wadjari People have been able to establish positive, long-lasting relationships with local Station Managers’ (at 11);
·‘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 12);
·‘Up to 90% of Mullewa Wadjari local 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 practices is to educate the children about the Native Title Party’s customs and traditions’ (at 13);
·‘In addition to the community-wide hunting weekends, individual members and families of the Native Title Party also regularly travel within and across the tenement area for hunting and gathering, foraging, fishing and camping purposes’ (at 14);
·‘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);
·‘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);
·‘Hunted meats are also traded for commodities such as petrol and diesel which is used by members of the community’ (at 17);
·The tenement area is 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’.
·‘The seeds of the jalga are high in nutrients and the Mullewa Wadjari People collect them by the bag-full from within the tenement area. If the bush tucker is in season, then members of Mullewa Wadjari will visit the tenement area ‘on almost a weekly basis’ to collect it’ (at 18-20).
·‘During the hunting weekends, adults within the Native Title Party teach the children traditional knowledge’ (including travelling to significant sites; boundaries of culturally restricted areas; location of bush medicine, food and water; cooking techniques; traditional language and culture; dreamtime stories; use of tools; reading the sky; and, maintaining a balance between traditional and western lifestyles) (at 21).
[26]The native title party contends (at 22) that they continue to use the area of the proposed licence. They hold concerns that the grant of the proposed licence would exclude them from the proposed licence area which would, in turn, restrict the transmission of culture to their young people (at 24).
[27]The native title party contends (at 25) if exploration activities such as those contemplated by s 66 of the Mining Act are carried out on the proposed licence, 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, camping and the teaching of laws and customs to children;
·The balance of wildlife and food sources around the proposed licence which will directly interfere with hunting, foraging and fishing activities; and
·If land on the proposed licence is damaged or access is restricted, the native title party will have to travel further out in order to hunt and gather food and resources.
s 237(b)
[28]The contentions addressing sites or areas of particular significance (outlined at 27-35), in summary state:
·The fact that the DAA Register does not record any sites does not mean that sites do not exist on the proposed licence (at 30);
·The native title party ‘are fearful of the adverse consequences which may befall them if their ancestors’ sprits are disturbed by damage to or interference with the places that they inhabit’ (at 31);
·The nature of some sites within the proposed licence area 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 32);
·Despite the protections afforded by the Aboriginal Heritage Act 1972 (WA) (‘AHA’), ‘suspected damage as a result of mining activities has already materialised at the Tallering Peak and at Bangemall Pool’, which falls within the native title party’s claim area. The native title party believes in that situation, ‘its failure to protect Tallering has caused the death of several members from the Native Title Party’ (at 33); and
·The significant sites existing within the proposed licence cannot be adequately protected by the AHA because their locations are unknown to the grantee party (at 34).
s 237(c)
[29]In addressing the issue of major disturbance of land or waters, the native title party contentions state (at 36) that regard should be had to:
·The frequent use of the proposed licence and surrounding areas for worship, travel, hunting and gathering of bush tucker by the native title party;
·The use of the proposed licence area for the education of younger members of the native title party; and
·The existence of unregistered sites in the proposed licence area that are unknown to the grantee party.
Grantee party contentions and evidence
s 237(a)
[30]The grantee party’s contentions (at 26) state that a signed Regional Standard Heritage Agreement (‘RSHA’) relating to the proposed licence was forwarded to the native title party on 1 August 2013. It states that this offer was not accepted but still stands and demonstrates its willingness to meet the concerns of the native title party in regards to site protection. It contends (at 32) that it has never been prosecuted under, or accused of breaching, the AHA, and (at 34) that its attitude towards the protection of Aboriginal heritage should be taken into consideration by the Tribunal.
[31]The grantee party contends (at 44-45) that it ‘plans to undertake the usual activities associated with exploration licences’ and that exploration work is of a ‘low-level, temporary nature’. Whilst it lists what it contends are the ‘usual activities’, the grantee party provides no detailed information regarding the particular exploration work planned for the proposed licence. Therefore, it is open for me to infer that the grantee party will exercise their rights under the Mining Act 1965 (WA) (‘Mining Act’) to the full (see Silver v Northern Territory at [25]-[32]), and I do make that inference.
[32]The grantee party contends (at 46-51) that the size of the proposed licence relative to the area of the Mullewa Wadjari claim area means that, while there may be some intermittent interference with the community and social activities of the native title party caused by the exploration, there is no real risk of this impact being substantial. To support this contention, the grantee party states that its on-ground exploration activities over the proposed tenement are unlikely to be frequent or cover large portions of the proposed licence area. They further contend that their access to the proposed licence would be temporary and nonexclusive; therefore, any restrictions on the native title party’s community or social activities would be limited to the area of exploration and would be of a practical nature for safety reasons.
[33]The grantee party contends (at 52-53) that prior and current activities over the proposed tenement area, and the restrictions these would have on the native title party’s community and social activities, are relevant to the Tribunal’s considerations. They highlight that the proposed licence area has been subject to a number of previous tenements and is almost entirely covered by pastoral leases and historical leases therefore, the native title party’s activities are or already were subject to, or coexistent with, these additional land interests. I note that Government party documentation indicates 14 previous tenements had been granted over this area.
[34]The grantee party puts forward (at 54-55) its intention to comply with all conditions and endorsements placed on the proposed tenement, and any relevant legislative requirements including those under the AHA and the Mining Act 1978 (WA).
s 237(b)
[35]The grantee party acknowledges (at 62) that there may be sites of particular significance within the proposed licence, including those not recorded on the DAA Sites Register. However, they contend (at 64-65) that the RSHA they are prepared to enter into with the native title party provides for the conduct of heritage surveys with the native title party, therefore, unregistered sites could be identified and avoided by the grantee party.
[36]The grantee party notes (at 68) that the tenement is an exploration licence and, therefore, only allows for exploration activity as defined by the Mining Act 1978 (WA).
[37]The grantee party makes reference to the conditions and endorsements proposed by the Government party (at 69-74) and its relevance to considerations under s 237(b) of the Act.
[38]It contends (at 75) that the grantee party’s proposed exploration activities are the ‘usual activities’ associated with exploration licences, including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and surveys, and that the ground disturbing work proposed would only be considered minor disturbance.
[39]The grantee party states (at 78) that the grant of the proposed licence is not likely to interfere with areas or sites of particular significance due to the operation and protection afforded by the AHA, the relevant regulatory regime and the fact that it has ‘entered into an RSHA covering the entirety of the Tenement’ (at 78). Despite this contention, it would seem that an RSHA has only been offered to the native title party rather that entered into, at present. There is no evidence before me that would suggest an RSHA has been ‘entered into’ with the native title party or either of the other two registered native title claims that overlap the proposed licence. However, I do acknowledge that entering into an RSHA is an enforceable option that is open to the native title party as outlined at [22].
[40]The grantee party contends (at 80) that it has ‘committed to complying with not only the relevant law and government policy, but has also voluntarily assumed further obligations to ensure that no interference...is likely’. I am unsure as to whether this is referring to the RSHA or some other obligation, as this contention appears to be unsubstantiated.
[41]The grantee party contends (at 81-84) that insufficient evidence has been provided by the native title party in relation to specific sites or likely physical interference and that their contentions are general in nature.
s 237(c)
[42]The grantee party does not provide any specific contentions in relation to s 237(c), but does draw attention to the principles set out in Little v Oriole Resources Pty Ltd (at [41]-[57]). These principles do inform my reasoning for s 237(c) as outlined below.
Government party contentions and evidence
[43]The Government party states that it proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract as well as the proposed RSHA condition (as noted at [20]-[22] of this decision).
[44]The Government party states, in the absence of evidence to the contrary, the Tribunal must assume that a grantee party will not act in breach of the relevant statute law, regulations or conditions imposed upon them (at 22). Rather, the Government party contends the grantee party’s contentions provide a firm basis for concluding that the criteria of s 237 of the Act will not be breached (at 26).
[45]The Government party suggests (at 27) that the statements contained in the native title party’s contentions are not evidence but unsupported assertions, therefore they should not be relied upon by the Tribunal. It states (at 28) that no specific evidence has been provided in relation to ss 237(a)-(c).
s 237(a)
[46]The Government party states (at 45) that the native title party have not provided any evidence to support its contention that community and social activities take place within the proposed tenement area. To the extent that the native title party does conduct community and social activities within the proposed licence area and surrounding areas (as outlined at [25] of this decision), the Government party contend (at 46) there is not likely to be interference with those activities because:
·The proposed exploration is relatively low-level, temporary and broad based;
·The grantee party has indicated its willingness to enter into an RSHA-type agreement with the native title party and, regardless of whether or not the native title party accepts this offer, it still demonstrates the grantee party’s willingness to consult with the native title party;
·The low-level and temporary exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon the native title party’s activities within the proposed tenement area, particularly given the intentions of the grantee party to maintain good relations with the native title party. While it may be possible for the activities of the native title party and grantee party to come into contact from time to time, it is not apparent that the activities of the native title party will be prevented or disrupted to any significant extent;
·Hunting and mineral exploration are, by their nature, inherently capable of coexistence and the Tribunal has on numerous occasions found that to be the case and determined that the grant of an exploration licence is not likely to interfere with hunting; and
·To the extent that the activities of the native title party consist of law ceremonies within the proposed licence area, the grantee party’s activities may only potentially intersect with those ceremonies during the limited period in which law business is held. While there may be a small possibility that the grantee party could approach near a ceremony whilst it is being conducted, the stated intention of the grantee party to respect and accommodate Aboriginal cultural issues will likely minimise this risk. If the grantee party is made aware of the time and location of any ceremonies, the grantee party is unlikely to conduct its operations in a manner which interferes with any ceremony or the privacy of its participants.
·The proposed licence has been subject to prior mineral exploration and possibly mining activity, and is also overlapped by a number of other interests including pastoral leases and a State Onshore Pipeline Licence. It is likely that at least some of these interests would have affected the extent to which community and social activities could be carried out in the area. Further, the activities of the native title party have been ‘subject to, or coexistent with, all of these lawful activities for a significant period of time’;
·Any intersection between the community and social activities of the native title party and the grant of the proposed licence would be the same as, or no more significant than, the previous and continuing use of the proposed licence area; and
·It is unlikely that the grant of the proposed licence would preclude the native title party from accessing the proposed licence area given the limited nature of the rights held by an exploration licencee. At most, there is a slight risk that the grantee party might be physically in the way of a member of the native title party in relation to the small area of land where they are operating on any given day; however, this is not substantial enough to constitute interference under s 237(a).
s 237(b)
[47]The Government party (at 65) describe the native title party’s contentions as speaking only generally about the presence of sacred sites and the ramifications of disturbance to these sites. They contend that the native title party fail to specifically identify any sacred sites, the significance of any sites to the native title party, or how the grant of the proposed licence might interfere with such sites.
[48]The Government party states (at 67) that it does not accept the native title party’s contention that mere presence in an area may cause interference. It states that whether or not something directly interferes with an area or site is a matter for evidence establishing that, and none has been provided in this matter.
[49]In relation to Salt River and Burra Lakes, being the ‘other heritage place’ recorded on the Aboriginal Heritage Inquiry System which overlaps the proposed tenement, the Government party contends (at 68-69) that a site being recorded under the AHA is not determinative of whether the site is a ‘site of particular significance’ for the purposes of s 237(b). Further, it contends the native title party has not provided any evidence as to the significance of this site, therefore, the Tribunal cannot be satisfied that it is indeed a site of particular significance.
[50]The Government party states (at 70) that, in the event there are any sites of particular significance within the proposed licence, interference is unlikely because:
·Proposed exploration activities will be low-level and temporary, and any ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites;
·To the extent that the Salt River and Burra Lakes is a site of particular significance to the native title party, the grantee party is now aware of the existence of that site and of its legal obligations in respect of that site;
·Mere existence of a site is not sufficient to demonstrate likely interference. The Government party note there are restrictions placed on the grantee party in respect of its activities by way of conditions and endorsements; and, the grantee party has demonstrated a willingness to work with the native title party, at least through the RSHA, to avoid interfering with sites of particular significance;
·The proposed licence has been subject to prior mineral exploration and possibly mining activity, and is also overlapped by a number of other interests. The proposed activities of the grantee party are likely to be the same as, or no more significant than, the previous and continuing use of the land; and
·The regulatory regime is likely to prevent interference with any site of particular significance.
s 237(c)
[51]The Government party submits 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) (at 81). It further argues (at 82) that the qualification of ‘major’ must be given its ordinary meaning and is to be objectively assessed, and (at 83) that it does not appear the area of the proposed licence has any particular characteristics that would be likely to result in ‘major disturbance’ to land or waters arising given the grantee party’s proposed activities.
[52]The Government party states (at 85-88) that major disturbance to land or waters is unlikely because:
·The proposed exploration activities are low-level and temporary, and any ground disturbing activities are intended to be conducted in a manner which will respect local Aboriginal cultural concerns and not adversely impact on heritage sites;
·The proposed licence has been subject to prior mineral exploration and possibly mining activity, and is largely covered by a range of different tenures including pastoral leases and a State Onshore Pipeline Licence. The activities proposed by the grantee party are likely to be the same as, or no more significant than, the previous and continuing use of the area;
·The State’s regulatory regimes, and the proposed conditions and endorsements, are likely to avoid and/or mitigate any disturbance to land or waters;
·Any authorised disturbance to land and waters caused by the grantee party may be mitigated by the proposed conditions requiring rehabilitation of the land following completion of exploration; and
·The proposed licence does not have particular characteristics that would be likely to result in major disturbance as per s 237(c).
Considering the evidence
Community or social activities (s 237(a))
[53]The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith v Western Australia at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith v Western Australia at [27]).
[54]The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. I adopt the approach taken in Silver v Northern Territory (at [29]-[30]), where it was outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement...evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
[55]A general description of the grantee party’s intended activities have been outlined in terms of its initial exploration program, and its general approach to its activities, at [35]-[38] of this decision.
[56]The grantee party has indicating its willingness to enter into an RSHA and the native title party has the option to formally enforce this intention through the proposed RSHA condition (as outlined at [22]).
[57]The native title party’s submissions relating to s 237(a) of the Act are outlined at [24]-[29] above, which relate to its camping, hunting, fishing and education of children activities on the proposed licence. In response, the Government party states (at 45) that insufficient evidence has been provided to support the native title party’s contentions. As such, the Government party contends the Tribunal is unable to accept that the native title party engages in any of these activities, much less determine how the grant of the proposed licence might interfere with those activities. Although the Government party denies the conduct of these activities, it contends that to the extent they are carried out, there is not likely to be direct interference due to the factors listed at [46] above.
[58]In relation to these points, I accept past and present exploration and mining activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party if and where they exist. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous and ongoing activities will already to some extent have interfered with the native title party’s community and social activities (see Tullock v Bushwin at [122]).
[59]The total area of the Mullewa Wadjari claim is approximately 35568.7024 square kilometres and the proposed licence is approximately 56 square kilometres. Consistent with previous Tribunal decisions, such as Cooke v Dioro Exploration, I find the size of the proposed licence area, in the context of the much larger native title claim area, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.
[60]As noted by the Government party, the native title party has provided no evidence in this matter, and its contentions are general in nature. The native title party does not outline why these activities could only take place on the proposed licence as compared to taking place elsewhere within the larger native title determination area, or how the grantee party’s proposed activities may interfere with these activities.
[61]The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place. In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities, except in an incidental and insubstantial way. I believe this is such a case.
[62]In the circumstances, taking into account the information and evidence which has been provided, 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))
[63]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 there are no registered sites within the proposed licence area and one ‘other heritage place’. 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.
[64]The DAA 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.
[65]The native title party’s contentions directed at s 237(b) of the Act are outlined at [28] of this decision. The native title party speaks generally about the existence of sites within the proposed licence, their susceptibility to interference, and the consequences to the native title party if these sites are disturbed. However, as the Government party contends, it fails to specifically identify any sites, the significance of these sites to the native title party or how the grant of the proposed licence might interfere with these sites.
[66]The native title party outlines damage to Tallering Peak and Bangemall Pool, sites that Tribunal mapping shows to be located approximately 80 kilometres west of the proposed licence. However, no evidence has been provided which would suggest such damage was caused by the grantee party or that similar damage would be likely in this case. The grantee party attests its willingness to conduct heritage surveys prior to conducting any ground disturbing work on the proposed licence. The grantee party has also expressed a clear attitude to abide by the State’s regulatory regime and I have no evidence which causes me to doubt the grantee party’s intentions.
[67]The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Parker v Iron Duyfken at [39]; Cheinmora v Heron Resources at [43]). The evidence before me does not disclose a sufficient basis to reach a conclusion that any sites of significance exist, the particular significance of these sites if they do exist, or the likelihood of them being interfered with.
[68]The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, Parker v Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Cherel v Faustas Nominees (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance. I am satisfied, based on the available evidence, that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed licence, are likely to prevent interference with any area or site of ‘particular significance’ in the context of exploration activities.
[69]Taking all of these factors into account, I find there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.
Major disturbance to land and waters (s 237(c))
[70]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]).
[71]The native title party contentions directed at s 237(c) of the Act are outlined at [29] of this decision.
[72]The Government party (at 81) 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).
[73]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.
[74]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 [52] of this decision.
[75]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 licence deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4) and numerous additional conditions and endorsements;
·the grantee party is willing to enter into an RSHA with the native title party;
·the endorsements on the proposed licence direct the grantee party’s 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); and
·there is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
[76]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
[77]The determination of the Tribunal is that the act, namely the grant of exploration licence E59/1968 to West Coast Geoscience Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
16 February 2015
0
17
0