Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Northern Star Resources Ltd
[2012] NNTTA 120
•16 November 2012
NATIONAL NATIVE TITLE TRIBUNAL
Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Northern Star Resources Ltd, [2012] NNTTA 120 (16 November 2012)
Application No: WO12/161
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga – (WC97/43) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Northern Star Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 16 November 2011
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance– expedited procedure attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 39, 146, 148(b), 151, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 58
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases: Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010)
Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA
Smith v Western Australia and Another (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representative of the Ms Julie Walker, Gobawarrah Minduarra Yinhawanga Aboriginal
native title party: Corporation
Representatives of the Mr Cheyne Beetham, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Ms April French, Austwide Mining Title Management Pty Ltd
grantee party: Ms Catherine Melia, Austwide Mining Title Management Pty Ltd
REASONS FOR DETERMINATION
On 14 December 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2310 (‘the proposed licence’) to Northern Star Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is situated in the Shire of Ashburton. It is 18.9 square kilometres in size and located 42 kilometres west of Paraburdoo. The native title claim of the Gobawarrah Minduarra Yinhawanga (WC97/43 - registered from 29 October 1999) wholly overlaps the proposed licence. On 14 February 2012, an expedited procedure objection application was lodged with the Tribunal by Limpet Giggles and others on behalf of Gobawarrah Minduarra Yinhawanga native title claim group (‘the native title party’ or ‘GMY’) in relation to E08/2310.
The proposed licence also wholly overlaps the native title claim of the Jurruru People (WC00/8 – registered from 1 March 2001). No expedited procedure objection application has been lodged by the Jurruru People.
In accordance with standard practice, the Tribunal gave directions to the 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 s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions set on 16 April 2012 allowed for native title party compliance up to and including 13 August 2012, with other parties compliance to follow.
The native title party did not comply with directions and on 14 August 2012 the Government party requested the matter be dismissed under s 148(b) of the Act, and this request was supported by the grantee party. The Tribunal gave the native title party until 20 August 2012 to respond. On 17 August 2012 the native title party representative provided a response which indicated, among other things, that: she had recently taken over the claim representation in these matters; the claim group was currently not legally represented; and there were significant sites and burials on the claim area including the representatives’ mother and sister. The correspondence also indicated a misunderstanding on the part of the representative between the future act determination process (under s 39 of the Act) and the arbitration process associated with objection inquiries under the Act. On 6 September 2012 the President decided not to dismiss the application and set compliance dates for an inquiry. In addition, Tribunal staff provided assistance regarding the nature of the objection inqury process to the native title party representative.
The native title party compliance date set by the President was 24 September 2012, with other parties to follow. On 28 September 2012, the Grantee Party requested dismissal of the matter following the native title party’s failure to comply with the President’s directions.
The Tribunal wrote to all parties for their response by 2 October 2012 and on 1 October 2012 the native title party representative sent a detailed letter which included an attachment in the form of the Department of Indigenous Affairs (DIA) ‘Cultural Heritage Due Diligence Guidelines’ dated 18 November 2011. That letter requested ‘GMY be given opportunity to lodge contentions and evidence on or before the end of 5 October 2012’. However, events overtook this request and, as outlined in paragraph [9] below, in effect, the native title party was given until 17 October 2012 to provide any further contentions or submissions.
On 9 October 2012, I was appointed by the President of the Tribunal as the Member to conduct the inquiry in this matter, and to determine whether sufficient information has been submitted by the native title party for the Tribunal to conduct an inquiry.
On 11 October 2012, following a review of the available information, the Tribunal sent an email to parties indicating that:
1. The matter will proceed to inquiry with no further hearings. Therefore the Listing Hearing scheduled for Thursday 25 October is vacated;
2. The Member accepts the NTP letter submitted by email on 1 Oct 2012 as their contentions – if the NTP have anything further to submit it will need to be done so by Wednesday 17 October. There will be no further extension of time;
3. The Grantee Party is to comply with directions by submitting contentions by Thursday 25 October 2012;
4. The SSO (for the State) is to comply with directions by submitting contentions in response by Thursday 1 November 2012; and
5. The matter will be heard on the papers by Member Shurven, unless there are any submissions to the contrary which the Member will consider.
The native title party did not provide any further submissions and so their letter submitted by email on 1 October 2012 was accepted as their contentions in this inquiry matter.
The grantee party provided detailed submissions on 25 October 2012.
The inquiry proceeded to be determined ‘on the papers’ as per s 151 of the Act, and I am satisfied that it can be adequately determined in this way.
Legal principles
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.
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340.
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).
Evidence provided by the Government party
The Government party has provided: a statement of contentions; tengraph plan with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement application; copies of the proposed endorsements and conditions of grant and a tengraph quick appraisal.
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
· A pastoral lease 3114/1218 (Ashburton Downs) (at 99.7 per cent)
· A road reserve (at less than 0.1 per cent)
· 11 tracks
· 2 non-permanent lakes
· 16 non-permanent minor water courses
Documentation establishes that the proposed tenement has previously been overlapped by two exploration licences, one granted in 1995 (49.9 per cent overlap) and one granted in 2006 (16.7 per cent overlap), and both now surrendered. There is also one live exploration tenement, granted in 2010, which overlaps the proposed licence by 16.7 per cent.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA registered sites within the proposed licence, and there is one ‘other heritage place’ recorded (site ID 17435 – Wanu Wanu – Seven Mile Creek). Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed licence, and the closest DIA registered sites appear to be approximately 15 kilometres away.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5-6).
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.
Evidence provided by the native title party
The native title party provided two letters which were accepted by way of submissions in this matter, one on 16 August and one on 1 October 2012. These letters provided minimal specific information regarding the social or community activities of the native title party on this particular proposed licence, nor was much specific information provided about sites of particular significance on this proposed licence or relating to disturbance to land and waters in the area of the proposed licence.
The August letter was of little assistance to the Tribunal in relation to this objection inquiry and raised general policy issues and issues regarding s 39 of the Act which were not relevant to this inquiry. However, of note is that the August letter refers to:
in the claim area GMY have a significant number of sites including burials. Both my sister’s and mother’s traditional burials were permitted with pastoralists and state government approval. Under Aboriginal customary law only the GMY can exercise the duties and responsibilities associated with GMY heritage protections (emphasis added).
The submission does not direct the Tribunal or other parties as to the specific locations of these sites and as to whether they are on the proposed licence.
The letter dated 1 October states that it ‘is written under the auspice of the Aboriginal Heritage Act’ (emphasis in original). That letter confirms that the native title party had dismissed the representative body (Yamatji Marlpa Aboriginal Corporation) as their legal representation and had a backlog of s 29 notices and other native title work. This letter also raised policy considerations -for example, raising issues about the Government party’s policy decision to accept a Regional Standard Heritage Agreement from only one claim group where there are two or more overlapping claims in a certain area.
As with the August letter, the October letter refers to sites and activities in very general terms. For example, it refers to ‘a significant number of birth and burial sites scattered throughout the claim area’ (emphasis added). It also refers to ‘a significant failing of the DMP and the GP of the Department of Indigenous Affairs Cultural Due Diligence Guidelines’ but does not specifically say what those failings are. Again, it does not direct the Tribunal or other parties to specific areas of concern in relation to the actual proposed licence E08/2310.
The October letter requests ‘that the NNTT review the heritage management protocol the GP and DMP are proposing for the tenement area and be ordered to allow GMY to conduct both surveys and the specific work clearance on the following guidelines adopted from the AHA’ and goes on to quote general principles of the AHA and refers to s 18 of the AHA. The native title party goes on to state that they have not been provided with ‘a frame of reference as to how the work clearance will be conducted in the tenement’ and also goes into some detail regarding work clearances and cultural heritage surveys and who should conduct those.
The only part of the October letter which specifically refers to the proposed licence area is the statement that the tenement area:
...directly impacts on the seven mile creek basin area (Bitimah) which holds significant GMY sites including rock art, rites to passage sites, ceremonial sites birth places, conception places and is in the possible vicinity of burial places at the junction of the Turee and Ashburton River.
However, I do note from Attachment NS-5 to the grantee party 25 October contentions, that while Seven Mile Creek does appear to flow across the very bottom of the southern portion of the proposed licence, it does not appear that the Ashburton River flows across this tenement area.
Grantee Party Evidence
The grantee party complied with directions and submitted contentions by Thursday 25 October 2012.
The grantee party points out that the native title party claim area is 3431.045 square kilometres, that they executed an RSHA on 20 October 2011 with the Jurruru claimant group and also a separate RSHA with the native title party on the same date. They indicate that around 6 March 2012 the native title party advised the grantee party they would not accept the RSHA offered and that they would like to begin the process of negotiating a heritage agreement. To that end the native title party sent a cost agreement to the grantee. After considering the proposed cost agreement, the grantee party advised they did not find the terms acceptable. The grantee party states that ‘to date, no GMY AHA [Aboriginal Heritage Agreement] has been presented to the grantee party by the GMY for consideration and to enable the negotiations to proceed’ (at 8).
The grantee party states:
·they have conducted a site search with DIA ‘to create an awareness of any heritage sites over the proposed tenement’ (at 19(b))
·they are aware of the Wanu Wanu site
·they acknowledge ‘its responsibilities under the Aboriginal Heritage Act 1972...and any Regulations thereunder’, and will comply with the regulatory regime
·they remain ‘willing to undertake a heritage survey, pursuant to the Jurruru RSHA’
·‘as an agreement has been reached with the Jurruru native title party which covers the Wanu Wanu River that is also 100 per cent overlapped by the GMY claim, it is inevitable that any Aboriginal heritage survey required to be undertaken by the Grantee Party pursuant to the Jurruru RSHA, will be over the GMY claimed area, in particular the Wanu Wanu heritage site’. On this point, the grantee party go on to say that they ‘were willing to enter into an RSHA with GMY, however are not prepared to pay for a second heritage survey and/or administration costs under a second agreement when the Jurruru RSHA provides protection to heritage sites’
·specific clauses of the proposed GMY RSHA assure ‘beyond adequate protection of GMY Aboriginal heritage sites’
·their employees and contractors are instructed to ‘comply strictly with all environmental conditions, practices and the like and to rehabilitate any disturbance made to the surface of the land’, and that such disturbance ‘will be kept to a minimum in the determining of the geological prospectivity of the land the subject of the proposed tenement’
·they ‘will, if requested, provide non commercially sensitive information contained in the Mining Act 1978 Section 58 statement detailing the programme of works proposed, including where exploration is likely to be directed...’
·they have ‘considered and appreciated’... ‘ recognition of the traditional customs and traditions of the GMY’
·they have ‘not acted in any way to disrespect the GMY’
Weighing up 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 pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia and Another (2001) 108 FCR 442 (‘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 account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
In this matter, the native title party has provided only the very broadest of information about community and social activities, which generally focuses on the claim as a whole, rather than on this particular proposed licence. It also appears that a pastoral lease covers almost the entire area of the proposed licence.
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 Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]). This is also such a matter.
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 and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 at [29]-[30], Member Sosso (whose findings 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 total area of the claim is approximately 3431.045 square kilometres, and the grantee party’s proposed activities within the proposed licence area in the context of the size of the native title claim makes it less likely that exploration activity will interfere with the community or social activities as broadly described by the native title party. In addition, the grantee party has provided some detail in relation to its intentions (as outlined at [33] above), and I am confident that, based on this evidence, the grantee party will comply with the regulatory regime, and there will be little likelihood of interference with social and community activities of the native title party on this proposed licence.
In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are no Registered Sites within the overlap between the claim and the proposed licence area, and there is one ‘other heritage place’ namely Wanu Wanu. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. 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 native title party has again provided very little specific evidence in relation to sites of significance, or sites of particular significance, which may exist on the proposed licence area.
In response, the grantee party notes (at 24) that the conditions and endorsements which would apply to the grant and confirms that it intends to comply with these, as well as the Aboriginal Heritage Act, the Mining Act and all subsidiary legislation.
The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010), Neville MacPherson at [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at [43]). I accept the native title party’s general evidence that there is a likelihood of sites significant to the native title party existing within the proposed tenement area. However, I agree with the grantee party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of interference.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In this matter, I am satisfied that the AHA and its associated processes, the endorsements and conditions to be placed on the proposed tenement are likely to prevent interference with any area or site of particular significance.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party contentions directed at s 237(c) of the Act are difficult to discern specifically from the submissions provided. However, I do note general statements made about rivers and waters in the area. I also note the endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA).
There is no firm evidence of any sensitive topographical, geological or environmental factors which would lead people to think that the grantee’s exploration activities would result in major disturbance to land or waters; and there is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
Taking into account all of these considerations, I do not find that major disturbance to land and waters is likely to occur as a result of the grant of the proposed licence.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E08/2310 to Northern Star Resources Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
16 November 2011
0
12
0