Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited

Case •

[2005] NNTTA 24

•

12 April 2005

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited, [2005] NNTTA 24 (12 April 2005)

Application No:         WO04/197

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Leonne Velickovic on behalf of the Widji People – WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Cazaly Resources Limited (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  12 April 2005

Catchwords:              Native title – future act – proposed grant of exploration licence –expedited procedure objection application – direct interference with carrying on of community or social activities unlikely – interference with sites of particular significance unlikely – major disturbance to land unlikely – act attracts the expedited procedure.

Legislation:Native Title Act 1993 (Cth) ss 29, 109(3), 151(2), 237

Mining Act 1978 (WA) s 66

Cases:Cheinmora v StrikerResources NL (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 & WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54

Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO03/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Representative of the

native title party:             Mr Jerome Frewen, Desert Management Pty Ltd

Counsel for the

Government party:          Mr Trevor Creewel & Ms Karen Dougall, State Solicitor’s Office

Representative of the

Government party:          Messers Clyde Lannan and Greg Abbott, Department of Industry & Resources

Representative of the
grantee party:                  Mr Nathan McMahon, Cazaly Resources Limited

REASONS FOR DETERMINATION

Background

  1. On 28 July 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E15/820 (‘the proposed licence’) to Cazaly Resources Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, a future act which can be done without the normal negotiations required by s 31 of the Act).

  2. On 16 August 2004 Leonne Velickovic, a named applicant and representative of the Widji People (‘the Widji native title party’) lodged an expedited procedure objection application with the Tribunal, relying on all three limbs of s 237 of the Act. The native title party’s application for a determination of native title (WC98/27) was entered on the Register of Native Title Claims from 15 June 1998.

  3. On 29 July 2004 the Central West Goldfields native title party also lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence (WO04/155).  This objection was withdrawn on 15 November 2004 following agreement being reached between the Central West native title party and the grantee party. 

  4. The area, location and extent to which the proposed licence overlaps both the registered native title claims is as follows:

  • E15/820 - 23.57 square kilometres, 15 kilometres northerly of Coolgardie in the Shire of Coolgardie; 100% overlap.

Conduct of the inquiry

  1. On 30 August 2004, in accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal made Directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure is attracted.  On 29 October 2004, these Directions were amended to bring compliance dates forward to enable the matter to proceed to inquiry at the earliest possible date as agreement between the grantee and Widji native title party on disposal of the objection was not possible, the grantee party relying on the Goldfields Regional Standard Heritage Agreement (‘RSHA’) which it had executed in favour of the Central West native title party in accordance with the Government party’s procedures relating to assertion of the expedited procedure (see explation of these procedures in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Linda Champion’) (at [18]-[22])).

  2. Some extensions of time for compliance were granted to the parties resulting in the Government party providing contentions and evidence on which it relies and the Widji native title party providing a Statement of Contentions signed by its representative Mr Jerome Frewen, but no affidavit or other documentary evidence.  The grantee party relies on the Government party’s contentions.

  3. On 25 February 2005 I convened a Listing Hearing during which I pointed out that as only contentions had been submitted on behalf of the native title party, there had not been compliance with the Tribunal’s Directions and therefore this objection was vulnerable to dismissal pursuant to s 148(b) of the Act. In Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 & WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner I accepted the contentions signed by a member of the native title party claim group as evidence having regard to s 109(3) of the Act which provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence. The present situation is somewhat different in that there is no evidence actually verified by a member of the native title claim group. While I think dismissal of the objection could be justified I have decided to deal with the matter on the basis of the contentions made by Mr Frewen. The contentions contain some relevant information as to the nature and location of Aboriginal sites in the vicinity of the proposed licence and no application to dismiss the objection application has been made by the other parties. Further, the Tribunal not having received a request for a hearing on country, I am satisfied I can adequately deal with the matter on the papers in accordance with s 151(2) of the Act.

Legal principles

  1. Section 237 of the Act provides:

‘237    Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

  1. In Walley vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[35]). I adopt those findings for the purposes of this inquiry. The Mining Act has recently been amended including in relation to exploration licences.  The amendments are not likely to come into effect until 30 June 2005 but will not apply to exploration licences applied for or granted prior to that date.  Whether these amendments will be relevant to future expedited procedure inquiries will need to be considered after the amendments come into effect.

The Regional Standard Heritage Agreement (RSHA)

  1. Throughout the preliminary proceedings the grantee party maintained that it had followed the Government party’s procedures relating to the RSHA.  However, the Widji native title party has not agreed to adopt the RSHA, nor was a copy served on it, as the grantee party consistent with the Government party’s procedures elected to execute the document in favour of the Central West Goldfields People (WC99/29) whose native title claim is also overlapped by the proposed licence.  I can infer based on the fact that the Central West native title party have withdrawn their objection that a satisfactory agreement between them and the grantee party has been entered into, in all probability the Central West Alternative Heritage Agreement (‘CWAHA’).  The existence of this agreement can be taken into account in determining this matter.  With respect to the Widji native title party the RSHA can only be considered relevant in the way set out in Linda Champion (at [29]-[35]).  In short, the RSHA is evidence of the grantee party’s positive intentions regarding the protection of sites of significance and of its preparedness to enter into an agreement for a heritage survey with the Central West Goldfields native title party but is not a binding agreement with respect to the Widji native title party. 

Evidence in relation to the proposed act

  1. The Government party documentation reveals the area of land subject to the proposed licence to be:

  • Pastoral leasehold (3114/1222- Mt Burgess Station) held by Centaur Mining & Exploration and Mt Kersey Mining NL;

  • Grazing lease (GE1126312) also held by Centaur Mining & Exploration and Mt Kersey Mining NL; and

  • Reserve 17462 – designated ‘Government requirements’.

  1. There are no Aboriginal communities located in proximity to the proposed licence, however, the Kurrawang Community is located approximately 16 kilometres to the southeast.  A search of the Register of Aboriginal sites maintained by the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) revealed that one registered Aboriginal site, Piira Tukurr (Site ID 846; W2133) roughly bisects the proposed licence. This site was reported to the Department of Indigenous Affairs in 1995 and is entered on the Permanent Register. The information contained in the relevant file indicates that Piira Tukurr is an extensive site focussed on a large drainage feature that runs roughly northeast-southwest between Kurrawang Lake and Mt Burges Station homestead, through the centre of the proposed licence. According to the associated mythology, the drainage feature was created by the actions of the ancestral being, Piira (who ultimately became the moon), as he walked from the Goldfields to the Nullarbor Plain to escape a flood. Piira’s journey began to the northwest of the proposed licence in a cave on Credo Station, from which he was ‘dug out’ by the mice who caused the flood.

  2. The quick appraisal documentation from Tengraph shows an extensive history of exploration and interest in the area of the proposed licence and that adjacent to it. Indeed, there is little land within a 10km radius of the proposed licence that is not encompassed by past, active or pending tenements.  More specifically, 22 dead tenements are listed that overlap the proposed licence to varying degrees:

  • eight tenement applications that are said to have been ‘withdrawn’ (E15/576; E15/680; L15/210; M15/789; M15/1250; M15/1324; M15/1325; M15/3837);

  • four tenement applications that are said to have been ‘surrendered’(E15/284; M15/350; M15/435; M15/437);

  • four tenement applications that are said to have ‘expired’ (E15/244; P15/2993; P15/3564; P15/3593);

  • four tenement applications that are listed as ‘unknown’ (MC15/1635; MC15/1642; MC15/2002; MC15/2003); and

  • four water reserves that are described as ‘null and void’ (WR15/58; WR15/59; WR15/60; WR15/61).

  1. The quick appraisal lists a further 19 tenements, designated ‘live’ or ‘pending’, that encroach on the proposed licence to varying degrees, ranging between less than 0.1% to 4.2%.  The ‘live’ group consists of six miscellaneous licences (L15/88; L15/90; L15/95; L15/96; L15/119; L15/211), one mining lease (M15/692) and two prospecting licences (P15/4134; P15/4422). The ‘pending’ group comprises one exploration licence (E15/882), six prospecting licences (P15/4367; P15/4368; P15/4369; P15/4370; P15/4371; P15/4654) and three mining leases (M15/818; M15/1340; M15/1446).

  2. My findings based on this history of the previous grant of mining and exploration tenements is that there has been considerable exploration and sustained mining activity over and adjacent to the area of the proposed licence.

  3. In addition to the Central West Goldfields native title party objection (WO04/155) referenced in para [3], a further nine objections have been received from the beginning of 1997 to the present in relation to tenements overlapping or abutting the proposed licence, the majority being finalised by way of objection withdrawal or dismissal following withdrawal of the tenement application.  It is usual practice for objections to be withdrawn following agreement about the protection of Aboriginal Heritage between the objector and grantee party and I find that this is likely to have happened in at least some of these cases.

  4. The grant of the proposed licence will be subject to the endorsements and conditions set out hereunder:

‘EXPLORATION LICENCE No. 30/269
ENDORSEMENTS

1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act, 1972.

CONDITIONS

1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.

2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Industry and Resources (DoIR).  Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Office, DoIR.

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 Office, DoIR is first obtained, the use of 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.’

Endorsement 1 and Conditions 1-4 inclusive are standard clauses applicable to the grant of all exploration titles.  A number of additional conditions will be imposed on the grantee that preserve rights of access and prevent interference with facilities on the adjoining miscellaneous licences referred to in paragraph 18 above, that require further Ministerial consent be obtained prior to exploration activity encroaching on Reserve 17462 and restrict exploration activity in a Safety Zone surrounding the rail corridor which crosses the proposed licence area..

  1. On 18 February 2005, the Government party advised that the following additional condition will be imposed on the grant of the proposed licence:

    ‘The Licensee, if so requested in writing by the Central West Goldfields People, the applicants in Federal Court application no. WAG65 of 1998 (WC99/29), such request being sent by pre-paid post to reach the Licensee’s address (c/o Cazaly Resources PO Box 396, West Perth, WA, 6872) not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Central West Goldfields People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’

Community or social activities (s 237(a))

  1. For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party. 

  2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act and conditions to be imposed for exploration licences detailed in Walley at [24]-[37] to contend that there is not likely to be direct interference with the carrying on of community and social activities (s 237(a)) by the native title party in relation to the area of land concerned.

  3. The native title party’s contentions signed by Mr Jerome Frewen (para 3.1 and 3.2) state that ‘[s]ince the late 1800s Aboriginal people, including ancestors of the Widji Group,  have lived and worked in the vicinity of the tenements’ citing occupation as ‘station-hands at Mt Burges Station’ as an example. The native title party further contends that it has been the objectors’ custom ‘to visit the general area of Kunanalling and the creeks which drain from this area into the wash country to the east, west and south to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements’.  It is then said that exploration will lead to ‘large areas’ of traditional land being closed off and that there will be evacuation of wild game and destruction of vegetable food and fruits.  The contentions further state that elders of the claimant group ‘have been accustomed to bring young group members and other children regularly to the Kunanalling area for the purpose of instructing them’.  The contentions then give an example of this activity by reference to Mr Velickovic, the objector, being brought to the area by key older relatives, his grand parents and uncles.  This evidence suggests that this activity occurred in the past as there is no specific reference to contemporary activity of this kind. 

  4. There is no more specific evidence provided of community and social activities of the native title party and the information provided in the contentions is very general in terms of its nature, frequency or the number of people involved.  It also appears that any activities are not restricted entirely to the area of the proposed licence as, according to mapping documentation, the proposed licence is approximately fifteen kilometres south of Kunanalling (which is described as the focus of activity).  Further, the grant of the proposed licence does not confer exclusive rights of access to the grantee party.  Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur.  Any restriction would also be temporary.

  1. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]). In this case the area of the proposed licence is over pastoral and other leasehold and it is likely that pastoral activities have interfered in some way with the native title party’s community and social activities. There is also extensive prior mining and exploration activity over and around the proposed licence. Given the extent to which these various activities have likely already impacted upon the native title party’s current quite limited community or social activities, I find that there is unlikely to be any substantial direct interference with them.

  2. The native title party (at para 3.3) contends that the female members of the Widji People have a particular responsibility for maintaining the ‘spirituality of the land’. The contentions go on to describe this responsibility as being exercised not only on behalf of the Widji People but also the ‘wider universe of Aboriginal people’.  They say that, the social cohesion of the community will be diminished and commence to disintegrate if this spiritual link with the land is lost.  With respect to the contention that the spirituality of the land will be destroyed by exploration activities, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land and that failure to do so properly will potentially lead to serious social consequences. The Tribunal has dealt with similar situations in other determinations (Walley at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO03/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’

  3. Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

  1. The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary - Cheinmora v Striker (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. The fact no or few sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean there may not be sites or areas of particular significance to the native title party over the area of the proposed licence. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  The Aboriginal Heritage Act 1972 (WA) protects all Aboriginal sites, whether on the Register or not.

  2. The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal (I adopt the findings in Walley at [50]-[51]). The Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely.  More recently in Linda Champion at [70]-[71] I found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites.  I adopt those findings for the purpose of this inquiry.  As in the past, the Tribunal will continue to have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

  3. At paragraph 4.6 of its contentions, the native title party states that “the tenement contains sites of extremely high cultural and historical significance”.  In support of this statement, the native title party goes on to describe one of the myths (“Tjurkurpa stories”) associated with these sites. This myth relates the story of Yakin “the moon ancestral spirit” who “came to earth to fight with a family of mice spirits”.  During the conflict, “the mice caused lightning to flash and a huge thunderstorm to follow. … The ensuing floods floated the Moon back to its present position and created the wash country go the east, west and south of Kunanalling”. The native title party also describes a number of named water sources that are associated with this mythology, including Roger Spring (lying within the central portion of the proposed licence), Cattle Swamp (located approximately one kilometre east of the proposed licence), Bullock Hole (location uncertain), unnamed soaks associated with Kurrawang Lake, along with other unnamed water sources whose location is not specified. The native title party further contends that other “sacred and ceremonial sites” exist in the vicinity of these water sources “whose locations and stories are known only to relevant Aboriginal elders”.

  4. The native title party’s contentions in this respect are very similar to the affidavit evidence (para 12) provided in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner (at [20]) where the same Tjurkurpa story is related. In that matter I found that the evidence of sites related to water soakages to the east and west of Kunanalling, although general and not detailed as to their location, were sites of particular significance to the native title party as they were associated with the Tjurkurpa story. I found that some were in the vicinity of the prospecting licences the subject of that matter and that ‘some may be on them’. In the present matter, although the proposed licence is some 15 kilometres further south of those referred to in WO04/61, the evidence supports a similar finding. It is apparent (see below) that the existence of this Tjurkurpa story is well established in relation to a considerable part of the proposed licence area. In addition to the considerable area identified as the Piira Tukurr site on the Register, which probably encompasses some of this water source referred to by the native title party, I accept that there may be others on the exploration licence area, the location of which is not identified

  5. In addition, as noted in paragraph [12] above, one previously recorded mythological site, Piira Tukurr is mapped as intersecting the proposed licence in a substantial way.  Despite not being specifically referred to in the native title party’s contentions, it is likely that Piira Tukuur is also associated with the Dreaming story recounted in them.

  6. In summary, the evidence relating to the existence of sites of particular significance to the Widji native title party is uncontested and establishes in relation to the proposed licence area:

  • the existence of a substantial area of particular significance (Piira Tukurr) intersecting the area of the proposed licence;

  • named sites (Roger Spring and Cattle Swamp) either on or in the vicinity of the proposed exploration licence; and

  • the possibility that other sites of particular significance associated with water courses exist on the licence area which have not been mapped or recorded.

  1. I also note the native title party’s contentions (para 7) that their concerns regarding the protection of these sites can be ameliorated by the execution of the heritage agreement proposed by them that defines protocols for the conduct of heritage surveys.  As already explained the grantee party has refused to enter into this agreement and relies instead on the RSHA it has executed.

  2. I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with any area or sites of particular significance.  The fact that there is a substantial area of particular significance and the possible existence of other unnamed sites in the tenement area means that there will need to be consultation with the native title party about them to ensure that there is no breach of the Aboriginal Heritage Act.  If this consultation does not occur there will be a real risk of interference with the area of particular significance or parts of it and possibly with other sites.  The question is whether the consultation that will take place under the Government party’s regulatory regime based on the Aboriginal Heritage Act will be sufficient to make interference with the significant area or sites unlikely or whether the formal negotiations pursuant to s 31 of the Act are necessary. My finding is that I am satisfied that the regulatory regime in place will ensure that interference with sites is unlikely for the following reasons.

  • The general location of Piira Tukurr area or site is known as are some of the other sites.

  • The grantee party is now aware of the possible existence of other sites associated with the water courses.

  • The grantee party is aware of its responsibilities under the Aboriginal Heritage Act and has undertaken to conduct a heritage survey with the Central West Goldfields native title party.  If for some reason there is no existing agreement to conduct a survey, the Central West Goldfields native title party can insist on the grantee party entering into a RSHA with them pursuant to the Government party’s proposed Condition (para [18] above).  I am satisfied that the grantee party being aware of the existence of these areas or sites will consult with the Widji native title party, probably in cooperation with the Central West Goldfields native title party.

  • The Widji native title party is not totally opposed to exploration but is prepared to agree to the exploration licence if a heritage survey (albeit one carried out according to its Alternative Heritage Agreement) is carried out.

  • There is a close affinity between the Central West and Widji native title parties (see WO04/61 at [35]) which means that sites significant to one group will also be significant to the other.

  • I am satisfied that the consultation required by the CWAHA or the RSHA will ensure that any risk of interference with sites will be avoided.

Major disturbance (s 237(c))

  1. Section 237(c) of the act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve major disturbance, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.

  2. The concerns of the native title party are set out in the statement of contentions and have largely been dealt with when considering ss 237(a) and 237(b). Apart from the sites of particular significance there is no direct evidence on the issue of major disturbance to land. The native title party again contends that a site survey is necessary to prevent major disturbance. For the reasons already given on s 237(b) I do not consider disturbance to land which amounts to interference with an Aboriginal site to be likely.

  3. The native title party contends that the activities permitted by an exploration licence (s 66 of the Mining Act) constitute a major disturbance of the ground "even from the viewpoint of the general community".  This generalised position has never been accepted by the Tribunal which has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place.  In most cases (see for example Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), Mr John Sosso at [48]-[64] and Walley at [59]-[63]) the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so. However, this is not an inevitable finding in all cases and there have been exceptions (see Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54; Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462; Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke).

  4. At paragraph 5 of the contentions, the native title party states that a permissible quantity of blasting or bulldozing, such as “ten metres by ten metres” for the construction of an exploration camp may be viewed as "minor from the viewpoint of the general community”.  However, if that blasting were to occur on a granite outcrop "established in the Creative Era by Widji ancestors", it would constitute major disturbance as defined by the Aboriginal community as a whole.  While I accept that this would be the case and that it would probably constitute a major disturbance by reference to the broader community if such a site were involved there is no evidence that such activity is likely to result from the proposed exploration.  In any event such a place is likely to be an Aboriginal site and protected in the manner described above.  The same can be said for the water sources and drainage features referred to in the native title party’s contentions, one of which has already been entered onto the Register of Aboriginal sites.

  5. In finding that there is not likely to be major disturbance to land I have also had regard to the fact that there are no Aboriginal communities in the vicinity, to the Government party’s regulatory regime in the Mining Act and conditions imposed dealing with ground disturbing activities and rehabilitation, the history of prior pastoral and mining activities and that there is no detailed 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.

Determination

  1. The determination of the Tribunal is that the grant of exploration licence E15/820 to Cazaly Resources Limited is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

12 April 2005

Actions
Download as PDF Download as Word Document