Les Tullock and Others on behalf of Tarlpa/Western Australia/Wiluna Exploration Pty Ltd; WF (Deceased) and Others on behalf of Wiluna/Western Australia/Wiluna Exploration Pty Ltd
[2013] NNTTA 169
•4 December 2013
NATIONAL NATIVE TITLE TRIBUNAL
Les Tullock and Others on behalf of Tarlpa/Western Australia/Wiluna Exploration Pty Ltd; WF (Deceased) and Others on behalf of Wiluna/Western Australia/Wiluna Exploration Pty Ltd [2013] NNTTA 169 (4 December 2013)
Application No: WO2012/0596 & WO2012/0598
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Les Tullock and Others on behalf of Tarlpa (WC2007/003;WAD248/2007) (Tarlpa native title party)
- and –
WF (Deceased) on behalf of Wiluna (WC1999/024;WAD6164/1998) (Wiluna native title party)
- and –
The State of Western Australia (Government party)
- and -
Wiluna Exploration Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Member Helen Shurven
Place: Perth
Date: 4 December 2013
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance - expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 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, (‘Butcher Cherel’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99 (‘Cheinmora’)
Cheinmora v Striker Resources (1996) 142 ALR 21, ('Striker Resources')
Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24, (‘Geotech International’)
Harvey Murray and Others/ Western Australia/ Drew Griffin Money [2011] NNTTA 91, (‘Money’)
Karajarri Traditional Lands Association (Aboriginal Corporation) /Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Leone Velickovic and Others/Western Australia/Royce William Allen NNTTA 347 (‘Royce William Allen’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Iron Duyfken’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker 1’)
Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker 2’)
Ronald Crowe & Others/Charlie Lapthorne & Others/Western Australia/Zhukov Pervan [2008] NNTTA 71, (‘Zhukov Pervan’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)
Violet Drury and Others on behalf of the Nanda People/Western Australia/Giralia Resources NL [2001] 38, (‘Giralia Resources NL’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)
Representatives of the Mr Mike Allbrook, Central Desert Native Title Services
Native Title Parties:
Representatives of the Mr Trevor Creewel, State Solicitor’s Office
Government Party: Ms Bethany Conway, Department of Mines & Petroleum
Representatives of the Ms Iva Morrell, McMahon Mining Title Services Pty Ltd
Grantee Party:
REASONS FOR DETERMINATION
On 22 February 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant amalgamation licence E53/1290 (AM379473) (‘the proposed licence’/'the amalgamation licence') to Wiluna Exploration Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
The Tarlpa native title claim (WC2007/003 – registered since 30 April 2008) overlaps the proposed licence by 91.77 per cent. The Wiluna native title claim (WC1999/024) overlaps the proposed licence by 8.23 per cent. These will be referred to as the Tarlpa native title party and the Wiluna native title party respectively, or collectively as the native title parties, as needed.
According to the notice:
·the proposed licence is approximately 8.99 square kilometres in size,
·the proposed licence is located 75 kilometres west of Wiluna, in the Shire of Wiluna,
·native title parties had until 22 June 2012 to lodge an objection application against the expedited procedure statement for the proposed licence.
On 22 June 2012, objection applications were lodged with the Tribunal by Les Tullock on behalf of the Tarlpa Native Title Claimants (the Tarlpa native title party), and Wilma Freddie on behalf of the Wiluna Native Title Claimants (the Wiluna native title party), respectively. A conditional determination was made by McKerracher J on 29 July 2013, which included areas claimed by the Tarlpa and Wiluna native title parties (WAD248/2007 and WAD6164/1998). It will become effective once the court makes a determination as to the prescribed body corporate for the determination area. I note that the Wiluna Native Title Claimants are yet to nominate a prescribed body corporate as at the date of this decision, and so the persons whose names appear on the Register of Native Title Claims as the applicant for these native title claim groups remain the native title parties for the purposes of future acts under the Act, until a prescribed body corporate is registered.
The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Parties attempted to reach agreement between approximately August 2012 and May 2013, and the Tribunal varied directions at parties’ request on various occasions to allow for negotiations to progress. On 22 May 2013, the grantee party requested that the matters be referred to inquiry.
Directions were issued by the Tribunal, and in compliance with those:
·DMP provided evidence to the Tribunal and other parties on behalf of the Government Party on 28 May 2013;
·the native title parties provided a statement of contentions on 12 August 2013 together with affidavits of Mr Robert Wongawol affirmed 1 August 2013, Ms Roxanne Anderson affirmed 30 July 2013 and Ms Lena Long sworn 16 September 2013(the contentions and affidavits being submitted in support of both native title parties’ objections);
·the grantee party provided a statement of contentions on 19 August 2013;
·the State Solicitor’s Office (SSO) provided the State’s statement of contentions on 17 September 2013 in response to the contentions of the native title parties; and
·the native title parties provided a reply to the grantee party and Government party contentions on 3 October 2013.
On 5 November 2013, I was appointed as the Member for the purpose of determination of these inquiries. On 12 November 2013, the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination, and no objections were received in response. I consider this a matter which can be determined ‘on the papers’ as provided for in s 151 of the Act, and I note that no party has requested otherwise.
The native title parties’ contentions state that they do not seek to pursue their objections made under s 237(c) of the Act. Therefore, this determination relates only to s 237(a) and (b).
Legal principles
Section 237(a) 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.
....
In Walley, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
In relation to s 237(a), I adopt the legal principles identified in Tarlpa at [10]-[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker at [31]–[38] and [40]-[41] (see also Parker 1; Parker 2).
Evidence and information provided about the proposed act
Government Party
The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA) (now known as the Department of Aboriginal Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and quick appraisal documents.
I note the underlying land tenure of the proposed licence to comprise: Crown Reserve 9699 for the purpose of Peak Hill Stock Route at 3.4 per cent; pastoral leases at 95.3 per cent (3114/1260 Millbillille at 8.0 per cent and 3114/1164 Lake Way at 87.3 per cent); and road reserves at less than 0.2 per cent (Road Reserve 4344 and Sandstone Wiluna Road).
There is currently one exploration licence overlapping the proposed licence by 0.1 per cent, one miscellaneous licence overlapping by 1.4 per cent and one pending miscellaneous licence overlapping by 28.8 per cent. There are also a number of dead tenements affected, including: one exploration licence in operation between 1996 and 2002 (which overlapped the proposed licence by 4.2 per cent); four previously granted mining leases in operation between 1989 and 2011 (which overlapped by between 4.2 per cent and 67.9 per cent respectively); 18 mineral claims in operation between 1970 and 1978 (which overlapped by between less than 0.1 per cent and 14 per cent); and three temporary reserves in operation between 1958 and 1970 (which overlapped by between 90.1 per cent and 100 per cent respectively).
The quick appraisal documents show the services affected in relation to this proposed licence are three minor roads, one track and fence line.
The DAA Register shows that there are no aboriginal sites recorded on the amalgamation licence. I do note that the Native Title Parties Form 4 Objection Application indicated that there was one site within the proposed licence area (Tjilla, site ID2149). However, this does not appear to be the case. Tribunal geospatial data indicates that site ID2149 overlaps the northern portion of E53/1290 but is 2.67 km from the amalgamation licence at its closest point.
The draft Endorsement and Conditions Extract for the proposed licence indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The following additional conditions would also be imposed on the proposed licence:
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 SSM- G 53-8 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water Reserves 12828 and 12829.
Consent to Mine on Peak Hill Stock Route Reserve 9699 granted subject to:
9. No mining operations being carried out on Peak Hill Stock Route Reserve 9699 which restrict the use of the reserve.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1. The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
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.
The Government party also states it intends to impose on the proposed licence a condition that the grantee party, 'if so requested by the Native Title Party in writing and within 90 days of the grant of the tenement, must execute the Central Desert Regional Standard Heritage Agreement in favour of the Native Title Party' (at 18 (a)).
I note the Government party refers to prospecting activities on occasion (for example, at 46 (i) and (j)). I take these references to be a typographical error as it is clear this matter relates to an exploration licence.
Grantee Party
The grantee party contentions indicate that the proposed licence is an amalgamation 'to include as part of Exploration License 53/1290… the area of former granted mining leases 53/117, 53/118 and 53/932'. This assertion is supported by the quick appraisal attached to their contentions dated 19 August 2013, which shows M53/117 and M53/118 were granted in 1989 and surrendered in 2011 (and overlapped the proposed licence by 27.8 and 67.9 per cent respectively), and M53/932 was granted in 2002 and surrendered in 2011 (and overlapped the proposed license by 4.2 per cent). As such, these mining activities, which I can infer were more intensive than any exploration activity that may be undertaken by the grantee party in this matter, may have already disturbed the social and community activities of the native title parties to some extent and may also have interfered with any sites of particular significance to some extent.
The grantee party states that its proposed exploration activities on the proposed licence are the usual activities associated with exploration licences, including the conduct of field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling, and surveys (at 33). It notes that, if granted, the amalgamation licence will be added to exploration licence E53/1290, which was granted on 7 January 2008.
The grantee party states that DIA heritage searches show no heritage sites recorded in the proposed licence (at 19).[1] It states that it has offered the Regional Standard Heritage Agreement (‘RSHA’) for the proposed licence to the native title parties’ representatives on 28 November 2011, and the offer remains open (at 9-10). The grantee party submits that the offer of the RSHA over the proposed licence more than adequately ensures that the grantee party is compliant with existing law and policy and also imposes additional obligations (at 12 and 35). It notes the operation of s 17 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and indicates that it has never been prosecuted under, or accused of breaching, the AHA (at 16-18).
[1] As the grantee party’s contentions for WO2012/0596 and WO2012/0598 are essentially the same, a reference to paragraph numbers is a reference to both sets of contentions.
The grantee party refers (at 51) to the previous Tribunal decision of Tambling to state that the native title party 'is obliged to inform the tribunal where there are any sites of particular significance in the specific area or vicinity...and explain the sacredness of such a site through evidence'. In Tambling, Member Sosso referred to the decision of Carr J in Striker Resources (at [34]-[35]) where His Honour referred to that firstly a site must be of more than ordinary significance, and, secondly, that this special quality is assessed from a proper consideration of the traditions of the relevant native title holders. The grantee party argues that 'No evidence has been provided of specific sites of significance within the Amalgamation area, or of any likely physical interference with these sites as a result of the grant of the Amalgamation' (at 52).
The grantee party states that the native title parties’ evidence and contentions suggest that the deponents of the various affidavits were shown plans of E53/1290 excluding the proposed amalgamation licence (at 46-47). As a result, the grantee party argues that the native title parties’ evidence provided in these matters is extraneous and irrelevant (at 48 and 50). It also states that this lack of clarity is compounded by the native title parties ‘bulk’ approach to its contentions and evidence (at 49). I agree that the maps attached to the native title parties affidavits do appear to show the granted tenement E53/1290, rather than the amalgamation licence. This does draw into question some of the evidence that was raised by the native title parties in this matter, as to the extent to which it relates to the amalgamation licence, and I deal with that in more detail below under consideration of s 237(a) and s 237(b) of the Act. However, I do not believe this arose from the 'bulk' approach to the matter.
I appreciate that, from time to time, a great number of tenements will be dealt with in single contentions, and single affidavits, for expediency. This does not mean that evidence presented can be any more general than evidence which would be presented in a matter dealing with one tenement. This is addressed in the native title parties’ reply (at 2.10) where the native title parties explain that 'the so-called bulk approach was adopted by the Native title parties in an attempt to streamline the enquiry process'. However, party representatives would be aware that general evidence is of little usefulness in expedited procedure matters, whether it is provided as part of evidence in multiple matters, or single matters.
The native title parties explain that it was their understanding that each tenement addressed in the bulk documents forms the basis of the same project being developed by a third party not directly involved in these proceedings. They considered it prudent to adduce evidence from the native title holders in the form of a single affidavit from each deponent that adequately covered all the tenements that formed part of the contemplated project (at 2.10). As such, I do not criticise the 'bulk approach'. It is merely that the evidence within the affidavit's and contentions, for this particular proposed license, was broad.
In any event, the grantee party submits that the native title parties’ contentions do not provide any evidence that the grant of the proposed licence is likely to interfere with sites of particular significance or community or social activities (at 45), specific sites of significance or the likelihood of interference with any sites (at 52), nor constitute major disturbance to land (at 53).
Native title parties
In regard to s 237(a), the native title parties contend the grant of the proposed licence is likely to interfere with the carrying on of the community and social activities of the native title parties in relation to the land concerned because:
·the Native Title Act should be beneficially construed (at 2.2 – 2.3);
·evidence of regular travelling, camping and hunting for various traditional activities is sufficient to sustain an objection under section 237(a) (at 3.9) and they cite a number of decisions in support of this (for example, Royce William Allen and Giralia Resources NL).
·off-site activities can be taken into account in consideration of interference with the carrying on of community or social activities if there is a clear nexus between those activities and the issue being considered (at 3.10); and
·there is a community in the area and point to the Wiluna registered claim (now conditionally determined) (3.11-3.12). Tribunal mapping does not identify any particular community specifically on or near the proposed license, and the native title parties contend the notion of community should be construed broadly.
In relation to the matter of Royce William Allen, Deputy President Franklyn QC acknowledged 'extensive' evidence from the native title party in relation to social and community activities on the proposed licence, and there were no contentions from the grantee party. As such, that matter can be distinguished from the present matter, where it could not be said the native title parties had provided 'extensive' evidence in relation to social and community activities, and where the grantee party has provided contentions in some detail. Similarly, in Giralia Resources NL, there was no evidence from the grantee party. In that matter, it was determined some 12 years ago, and there is little guidance in the decision about the nature and extent of the evidence provided by the native title party. It appears that there was evidence about the social and community activities undertaken on the relevant area, but that it was uncontested by the Government or grantee parties. In the present matter, the evidence of the native title party has been challenged by both the Government and grantee parties, and so I must weigh up the evidence provided, and the challenges, in making my decision.
Ms Long, Mr Wongawol and Ms Anderson state they are each traditional owners for the Wiluna and Tarlpa claim and that as Martu people they can speak for the area covered by the proposed licence as it is Martu country. I accept these deponents have the authority to speak for this area on behalf of the native title parties. The native title parties’ contentions refer to the affidavits and specifically that:
·the proposed licence area is within, or in close proximity to, the town of Wiluna and Bondini Aboriginal Community Reserve where many native title holders reside and exercise their native title rights (at 3.12(a) – (b); Ms Long’s affidavit at 2, 5, 7, 21-23; Ms Anderson’s affidavit at 4-8, 17-19; and Mr Wongawol’s affidavit at 3-4, 9). [I note that Bondini Aboriginal Community Reserve, and the town of Wiluna are approximately 15 and 13 kilometres from the proposed licence, respectively];
·the native title parties carry on community and social activities in the area of the proposed licence, including frequent travel, hunting (for bush turkey, goanna and emu eggs), camping and inter-generational knowledge transfer (at 3.13(a)-(d); Ms Long’s affidavit at 4-9, 12-15, 17-24; Ms Anderson’s affidavit at 4-5, 12-13, 17-18, 20; and Mr Wongawol’s affidavit at 4-6, 9-11, 13); and
·activities of the grantee party will interfere with the ability of the native title parties to conduct community and social activities within the proposed licence area, including hunting and camping, and to fulfil their obligations to look after the area (at 3.14(a)-(d); Ms Long’s affidavit at 4, 12-15, 18-19, 24-25; Ms Anderson’s affidavit at 5, 7, 10, 12-13 17, 19-20; and Mr Wongawol’s affidavit at 3-9, 11, 14, 21).
In relation to s 237(b), the native title parties note concerns about the State’s regulatory regime, citing, for example, the WA Auditor General’s report entitled Ensuring Compliance with Conditions on Mining dated September 2011 (at 2.16-2.17). The native title parties state that I should adopt my decision in Karajarri. I do note my comments in that case as extracted by the native title parties (at 2.18), including in relation to various reports which had been written in relation to the weaknesses of the states regulatory regime. However, I also concluded in Karajarri (at [48]-[53]) that each matter must be dealt with on its individual facts to determine whether the protective regime is sufficient to make it unlikely that there will be interference with any sites of particular significance found to exist.
The native title parties also submit:
·the proposed licence contains sites of particular significance, including a jukurrpa traversing E53/1746, a dingo dreaming story traversing P53/1562, P3/1557, P53/1558-P53/1559 and E53/1644 and an emu dreaming story that traverses E53/1705 (at 4.24; Mr Wongawol’s affidavit at 16-18, Ms Anderson’s affidavit at 16; Ms Long’s affidavit 16-17);
·they have an obligation to maintain and protect sites of particular significance located with the proposed licence (at 4.25; Mr Wongawol’s affidavit at 5-6, 9, 18, 29 and 34; Ms Long’s affidavit at 23);
·the nature of the country on, and surrounding, the proposed licence is such that entry onto parts of the proposed licence and surrounds which have not been agreed with the native title parties would be likely to result in interference within the meaning of s 237(b) of the Act; jukurrpa tracks are not readily identifiable ‘by persons other than those instilled in the mysteries of the jukurrpa’, and interference with one part may cause interference to sites and/ or country located at other points along the jukurrpa (at 4.26; affidavit of Mr Wongawol at 19-20). [I do note, however, that the jukurrpa track is only identified in the very broadest of terms in relation to this particular proposed licence, and appears to be associated in more detail with other tenements which are addressed within the same native title party contentions and affidavits];
·the removal or interference with objects found in the natural environment in the proposed licence would constitute interference for the purposes of s 237(b) of the Act, including interference with rocks, stones and water courses (at 4.27; affidavit of Mr Wongawol at 19-20);
·the nature and importance of the sites within the proposed licence is such that certain activities permitted by the licence will constitute interference pursuant to s237(b) of the Act, but may not necessarily be prohibited under s17 of the AHA (at 4.28);
·the proposed condition requiring the grantee party to offer the RSHA does not mean it is unlikely that the future act will interfere with sites or areas of particular significance, including due to the nature of the sites and areas of particular significance (at 4.29); and
·meaningful consultation and negotiation between the native title parties and the grantee party are necessary to ensure that sites of particular significance are not likely to be interfered with, including due to the nature of the sites or areas of particular significance and issues such as access and gender restricted areas (at 4.30; Mr Wongawol’s affidavit at 8 and 19-21).
Mr Wongawols’ affidavit (at 8) states that 'if we run across an explorer we ask them what they are doing. Then we might call our lawyers up and make sure they understand that the explorer has to ask us before they start doing things on country. We’re always checking up on what people are doing on our country'. This is of some concern as it suggests a fundamental misunderstanding of the expedited procedure process and the exercise of native title rights and interests in relation to that process, which the native title party representatives may wish to clarify with their clients as native title parties do not have a veto in relation to activities of any grantee party. This is a well established principle in relation to native title matters.
The native title parties contentions argue that 'in areas where a proposed future act has been demonstrated to be site rich, it is incumbent upon the Grantee Party to lead some evidence...to provide basis upon which the NNTT might be assured that interference, intentional or otherwise, is not likely, given the practical difficulties with avoiding interference with sites in site rich areas' (at 2.13).
The term site rich is to be deciphered carefully. In Mineralogy, the use of site rich was construed by Deputy President Sosso (at [19] to [21]) as follows:
...It is open, of course, for the native title party to make such an assertion, but the question of whether an area is site rich is a question of fact. Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is 'site rich'. That term is not recognised in the Act, and has been used by various Members as a short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters. Accordingly whether there are numerous sites registered or no sites registered is not of itself determinative of whether an area is 'site rich'.
In this matter, the native title parties point the Tribunal to the fact that the proposed licence is surrounded on all sides by sites registered with the Department of Indigenous Affairs. That is an important factor, but it is only the starting point. It would be an unusual circumstance for the Tribunal to make a finding that an area is 'site rich' without direct evidence from a person or persons from the relevant claim group who can demonstrate that they are authorised to speak on behalf of a site or area, and that they have the requisite knowledge to explain the spiritual significance of an area or site to the claim group, or to a family or other sub-group within the wider claim group.
Also, in Geotech International, it was concluded that s 237(b) is concerned with identifying sites of particular significance, and it is not a necessary requirement to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning from Member O’Dea in Geotech International at [43]:
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstance[s], in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
Consequently, I conclude that the term 'site rich' is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of the grantee party.
The native title parties’ reply disagrees with the grantee party contention that there are no aboriginal communities in the area of the amalgamation licence, and refers to the affidavit material to assert the close proximity of Wiluna is sufficient to establish a community. I do note the affidavit material refers to the Bondini community also, which is not raised in the native title parties’ reply. Even taking into account the geographical proximity of Wiluna and Bondini to the proposed license, the native title parties have not made out how the community relies on that particular proposed licence for the conduct of social and community activities, but rather talks in broad terms about the areas around Wiluna as being areas which are generally used for hunting and other social and community purposes.
The native title parties also outline some of the proposed grantee party activities which they indicate are ground disturbing (at 2.5) but, as outlined above, mining activities have been undertaken over the proposed license for 22 years and so it is likely they were of a higher impact than any exploration activities the grantee party is entitled to do under the Mining Act. In relation to the grantee party argument that the deponents of affidavits were shown E53/1209 rather than the amalgamation licence, the native title parties state (at 2.9) that they considered the 'whole of the tenement in question'. In my mind, the native title parties’ reply still does not adequately confirm whether or not the native title parties’ affidavit deponents restricted their evidence to the amalgamation licence, which is the only subject matter before the Tribunal on this occasion.
Considering the Evidence
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title parties (in the sense of there being a real risk of interference), (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party’s intended activities and intentions are outlined at [22]–[28] above, and the Government party contentions and information is outlined at [13]-[20] above.
The native title parties’ contentions and evidence in relation to s 237(a) are outlined at [30] and [32] above. As previously noted, affidavits were submitted from Ms Long, Ms Anderson and Mr Wongawol. All three deponents indicate they were shown maps of the land affected by various tenement applications which includes E53/1290, and which are collectively referred to as ‘the Tenements’. I acknowledge the grantee party’s submission that it appears that Ms Long and Mr Wongawol were shown a map that does not specifically delineate the amalgamation licence, but instead just labels the existing and granted E53/1290. I will nevertheless take into account the native title parties’ evidence concerning E53/1290 as being likely, in a general sense, to also affect the area of AM-E35/1290 which extends outside the boundaries of E53/1290. Tribunal geospatial services have supplied me with information that suggests the amalgamation extends approximately 1.65 kilometres east and 3.7 kilometres south of the boundaries of E53/1290, and I take this into account.
In Ms Long’s affidavit she states that ‘[w]e go out to the area covered by E53/1290 [and other tenements] all the time’, noting ‘[t]hat’s an area on the south side of West Creek’. She states that she was in the proposed licence area ‘a few weeks ago’ with her daughter and grandchildren, and that they caught a goanna and cooked it ‘up there where we caught him, in the country’ (at 12). She states that she showed her grandchildren how to carry on these Martu ways, like her mother had taught her (at 13). Ms Long notes that ‘[w]e go all around that country, not just in those tenements. We go all the way down south to Yeelirrie country and out west to Ullula station as well out east to Lake Violet, hunting goanna and teaching our children’ (at 14). She recalls that '[w]e went all around that area [the Tenements] for the Easter school holidays’ and spent time camping, gathering traditional food for the children and showing them rockholes (at 15 and 22).
She notes that areas including the proposed licence are a good spot for collecting emu eggs (at 17). Ms Long states that the proposed licence area and other surrounding tenements generally ‘are important places for us Wiluna mob and we always going out there’, hunting animals like goanna, emu and kangaroo (at 21). She indicates that ‘[w]e always run into other Wiluna mob in [E53/1290 and other tenements] because it is so close to town so we always go out there and use the land. I see the Bondini Reserve mob and the mob from town [Wiluna]....all the time and we always have a yarn about where there is good hunting and good places to go to get a feed’ (at 23).
In Ms Anderson’s affidavit, she states that the land ‘close to Wiluna that is covered by tenements E53/1290 [and other tenements] is really good country for hunting’ (at 8). She states that when it’s emu egg season, ‘the Wiluna and Tarlpa native title holders we go out and grab those eggs and eat them up. We do this all the time, including in those Tenements’ (at 9). She talks about hunting for kangaroo and goanna in E53/1290 and other tenements (at 11), and notes that she spent Easter weekend ‘in that country’ camping with family. In relation to the proposed licence area and other surrounding tenements generally, Ms Anderson refers to hunting activities carried out by several family groups ‘all the time’, and ‘every weekend probably’ (at 17-18). She also states that when the elders go out to the area ‘they remember their stories and tell us about them. They tell stories about their country to all the grandkids’ (at 19).
In Mr Wongawol’s affidavit, he states that ‘[t]he land around Wiluna is part of my country and I go everywhere around town there in those Tenements. I go out bush to go hunting all the time’ (at 4). He states he goes out hunting and camping in the tenements with his brother and uncles ‘a lot’, and that he takes his grandchildren and nephews out there as well (at 5), including to show them how to cook goanna (at 6-7). Mr Wongawol states that if people ‘hurt the jukurrpa’ on Martu country then ‘people in Wiluna will be upset and other Martu people all over the desert will know about it and we will get growled at. If you don’t look after the jukurrpa in your country then you get in big trouble’ (at 19).
The Government party’s contentions argue that the native title parties’ statements ‘are extremely general and vague, to the point where they are incapable of conveying any useful information’ (at 26). It notes, for example, Ms Anderson’s statement that lots of families ‘live in the town of Wiluna and we all go all over the area of the Tenements everyday’ (at (4)-(5) Ms Anderson’s affidavit; at (26) SSO contentions). The Government party assert that this is ‘either an example of hyperbole or impossibly vague generalisation’, noting further that it is ‘physically impossible for all of the members of the claimant families living in Wiluna to go all over 899.96 hectares everyday and all the time’. The Government party concludes that since the statement cannot be taken literally, it remains unclear as to how many people go, how often they go and to what areas of the tenement. It asserts that similar ‘meaningless’ statements can be found elsewhere in Ms Anderson’s affidavit, as well as in Mr Wongawol and Ms Long’s affidavits. The Government party states that the generalised evidence should be given little weight (at 26).
Again, as outlined earlier, I do give weight to the information in the affidavits, however, the fact that it is largely generalised information in relation to this particular proposed license means that the information does not greatly assist me in drawing conclusions about the likelihood of interference in relation to the limbs of s 237 of the Act. I accept that the native title parties traverse the area of the proposed license (and the other tenements that are part of these contentions but not part of this determination) and this signifies to me that rather than disbelieve that the native title parties do these activities in such a widespread manner, I believe that they do such activities in a widespread manner (particularly given the close proximity of the proposed license to Wiluna, where members of the native title parties are said to live). It just means that the likelihood of interference with native title party activities by grantee party activities is going to be unlikely. I agree with the Government party (at 44) that it is clear the community and social activities referred to in Mr Longs affidavit do occur on the proposed license area (for example, hunting and bush tucker collecting), but that these activities are not outlined as being so intense that any activities of the grantee party would lead to interference with them as per s 237(a) of the Act.
In terms of the more specific evidence supplied in the affidavits, the Government party maintains that these statements also demonstrate hyperbole. For example, Ms Long’s affidavit states that the native title parties go to ‘the area covered by E53/1290, E53/1746 and E53/1661 all the time’ (at (12) Ms Long’s affidavit; at (27) SSO contentions). The Government party also states that Ms Long’s affidavit demonstrates vagueness in the way it attempts to make a single incident of catching one goanna attributable to three tenements consisting of many hectares. In summary, the Government party asserts that none of the affidavits raise any substantial evidence concerning community activities or sites of special significance on the proposed licence, and argues that the evidence relates to non-specific and generalised collecting of bush tucker within the proposed licence area (at 28).
I agree with the Government party that the native title parties evidence is generalised, but do not believe it is ‘meaningless’, or ‘incapable of conveying any useful information’, or full of hyperbole.
I note the native title parties’ reply to the contentions of the Government party state that it would be ‘impractical to list every occasion where every native title holder has exercised their native title rights’ in the proposed licence area (at 3.2). I accept that the native title parties engage in hunting and camping activities on the proposed licence area on an intermittent but regular basis, particularly given its proximity to Wiluna. However, as the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investments Corporation at [14]).
I agree with the Government party (at 46) that to the extent the evidence demonstrates members of the native title parties carry out any community or social activities in the area of the proposed licence, there is not likely to be direct interference with those activities for the following reasons:
• hunting and collecting of bush tucker can coexist with the grantee party’s proposed activities;
• the grantee party has stated most of the proposed exploration activities will be low-impact and non-intrusive, and any ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites;
• the proposed licence area has been subject to prior mineral exploration and possibly mining activity, which are likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area;
• 95.3 per cent of the proposed licence area is covered by pastoral leases, and 1.5 per cent of the proposed licence area is currently covered by mining tenements;
• although the proposed licence is near to Wiluna, there are no Aboriginal communities in the proposed licence;
• the low-scale exploration activities planned by the grantee party do not appear likely to have any disruptive effect upon the hunting and gathering of bush tucker in the proposed licence area;
• hunting and mineral exploration activity are by their nature inherently capable of coexistence; and
• the grantee party has indicated a willingness to enter into an RSHA agreement with the native title parties, and the native title parties have the opportunity of formally enforcing this expression of intention by the grantee party by invoking the proposed RSHA condition which the Government party intends to place on the proposed licence.
I do note Ms Anderson states (at 13) that the pastoralist for the Lake Way lease 'doesn't bother us when we're out there, just asks us to make sure we bury our rubbish. Some pastoralists don't like us hunting on their station, but the mob at Lake Way don't mind'. This is confirmed by Ms Long’s affidavit (at 18). This suggests that the pastoral activity on the proposed license has not significantly affected community or social activities of the native title parties. However, that the previous underlying mining licences existed for some 22 years, and the general principle that, unless displaced, hunting and collecting of bush tucker and other such activities can co-exist with exploration activities, must be given significant weight in this matter.
I also take into account the fact that each of the affidavits has indicated similar community and social activities take place across a wide area of the native title parties claims and so it does not appear that there are any particular activities which are performed in a way such that they would be confined to this particular licence or such that they would be interfered with by the exploration activities of the grantee party on this particular licence. For example, Ms Longs’ affidavit indicates that hunting for bush tucker is done 'all around that country, not just in those tenements. We go all the way down south to Yeelirrie country and out west to Ullula Station as well as out east to Lake Violet, hunting Goanna and teaching our children' (at 14). I note that Lake Violet itself is approximately 10 kilometres east of the proposed licence.
I appreciate that the proposed license is relatively close to Wiluna where members of the native title parties are said to live. However, I note that Ms Anderson (at 20) indicates that 'we can’t go hunting around some of the places near to Wiluna as much anymore. The drilling noise from mining activity interferes with the hunting, and scares the animals off…..they don’t want to stick around. It makes them hard to find for us'. Given that this proposed licence has been subject to mining for some 22 years suggests that it may not be an area where community and social activities take place to such an extent that they would be interfered with by the grantee party.
In the circumstances, taking into account the evidence available, I conclude that there is unlikely to be interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title parties in accordance with their traditions. As noted, it is established in DIA documentation that there are no registered sites within the proposed licence. However, this does not mean there may not be other sites or areas of particular significance to the native title parties over the areas of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The grantee party’s intended activities and intentions are outlined at [22]–[28] above, and the Government party contentions and information in relation to s 237(b) is outlined at [13]-[20] above.
The native title parties contentions and evidence in relation to s 237(b) are outlined at [33]-[42] above. In addition, the native title parties’ contentions in relation to s 237(b) of the Act state that the proposed licence contains sites of particular significance, including a jukurrpa traversing E53/1746, a dingo dreaming story traversing P53/1562, P3/1557, P53/1558-P53/1559 and E53/1644 and an emu dreaming story that traverses E53/1705. I do not find reference to sites particularly situated in or related to the proposed licence, AM-E53/1290, or within E53/1290 more generally. The Tribunal has held on previous occasions that the native title parties must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]). To the extent that the grantee party’s activities may cause any inadvertent interference to sites in the area, I note the grantee party has made it clear in their contentions that they seek to consult with the native title parties’ in this regard by offering entry into an RSHA agreement (at 9-14).
I do note that the native title parties contentions argue that the Government party has not provided evidence as to which provisions of the RSHA it consider have a 'sufficiently protective effect' (at 4.16) and outlined (at 4.18) the defects it saw the proposed RSHA had in relation to other regional standard heritage agreements. Had the native title parties made out with greater detail the existence of sites of particular significance in the proposed license, then I would have looked further into these arguments to see the level of protective effect they may have had.
However, given the general nature of the native title parties evidence in relation to this limb of s 237, I do not intend to address these points in any great detail. For example, the native title parties have argued that 'the nature of the country on, and surrounding, the tenements is such that any entry on to parts of the tenements or the surrounding country which has not been agreed with the Native title parties, would be likely to result in interference within the meaning of s 237(b)’ (at 4.26). The native title parties cite Zhukov Pervan (at [99]) in support of this. However, in that decision, a site of particular significance was shown to exist on the relevant area, was identified in the evidence, and its 'particular sacredness' was explained by the native title party (at [90]). In addition, a vast array of sites were said to exist in the relevant area, including gender restricted sites, and none of this evidence was contested by other parties. In the present matter, the evidence provided by the native title parties does not appear to be extensive or detailed as that provided in Zhukov Pervan, and that evidence has been contested by the Government and grantee parties.
The native title parties legal representatives would know that mounting such an argument is so broad that it carries little meaning in relation to showing there are sites of particular significance on this proposed license. They refer, for example, to the interference with the Jukurrpa (for example at 4.26 (b) and 4.29 (b)) but again these references are so general, referring to a domino effect of interference between tenements, that it is of little use in this matter.
As mentioned, the native title parties’ express concern in their contentions about the adequacy of the State’s regulatory regime (at 2.14-2.21). I refer to the Tribunal’s previous findings in this regard, that both the existence of the AHA and the availability of the RSHA give rise to a presumption that sites will be protected, and the Auditor General’s Report does not necessarily affect this presumption unless evidence indicates that it should (see for example, Money).
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Butcher Cherel (at [81]-[91])). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites.
The Native title parties contentions argue that there are circumstances where the AHA and the associated regime will not be sufficient to ensure that s 237(b) interference is unlikely, taking into account the nature of any site or area, whether there is an area or site of particular significance, the nature and size of such an area or site, and the intentions of the grantee party (at 4.12). In this respect I agree with the native title parties and have taken into account each of these factors in relation to this limb of s 237. I do not believe that the native title parties have, in their contentions or evidence, convinced me that there is a site or area on this proposed license which is of particular significance and so I can draw no conclusions about the nature of the size of such an area or site.
I do not need, therefore, to go to the next stage of making a judgement about whether interference with such a site is likely to occur. However, even if a site of particular significance was found to exist on this proposed license, I take into account the previous mining tenements, the stated intentions of the grantee party, the fact that even exercising their full rights available under s 66 of the Mining Act they are still only entitled to undertake exploration activities which are likely to be less intrusive on any such sites than previous mining activities.
In drawing my conclusions in this matter I have also had regard to the following:
The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive;
The proposed licence has been subject to prior mineral exploration; and
The AHA and its associated processes are likely to prevent interference with any area or site of particular significance to the native title holders.
In the circumstances, taking into account the evidence available, I conclude that there is unlikely to be interference of the kind contemplated by s 237(b) of the Act in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of amalgamation licence E53/1290 (AM379473) to Wiluna Exploration Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
4 December 2013
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