Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cazaly Resources Ltd

[2005] NNTTA 36

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Cazaly Resources Ltd, [2005] NNTTA 36 (30 May 2005)

Application No:         WO04/395     WO04/396     WO04/397     WO04/398      WO04/399

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

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Linda Champion on behalf of the Central West Goldfields People – WC99/29
(native title party)

-and-

The State of Western Australia (Government party)

-and-

Cazaly Resources Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  30 May 2005

Catchwords:              Native title – future act – proposed grant of prospecting licences –expedited procedure objection applications – 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:Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Acts Interpretation Act 1901 (Cth) s 36(2)

Native Title Act 1993 (Cth) ss 77, 148(b), 151(2), 237

Mining Act 1978 (WA) ss 20(5), 24, 26, 46, 57(4)

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

Dann v Western Australia (1997) 74 FCR 391

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/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, NNTT WO04/389, [2005] NNTTA 35 (30 May 2005), Hon C J Sumner

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

Little v Oriole Resources Pty Ltd [2005] FCA 506 (29 April 2005)

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

Representative of the

native title party:             Ms Elizabeth Sambo

Representative of the

Government party:          Mr Clyde Lannan, Department of Industry & Resources

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

REASONS FOR DETERMINATION

Background

1. On 25 August 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P16/2253, P16/2254, P16/2255, P16/2256, P16/2257, P16/2258, P16/2259, P16/2260, P16/2263, P16/2264, P16/2265, P16/2266 and P26/3272 (‘the proposed licences’) to Cazaly Resources Limited (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is, are future acts which can be done without the normal negotiations required by s 31 of the Act):

2. On 30 December 2004 Linda Champion, a named applicant and representative of the Central West Goldfields People (‘the native title party’) lodged the following expedited procedure objection applications with the Tribunal in relation to the above proposed licences, relying on all three limbs of s 237 of the Act:

• WO04/395 – in relation to P16/2253, P16/2254, P16/2255, P16/2256, P16/2257, P16/2258, P16/2259 and P16/2260

• WO04/396 – in relation to P16/2263 and P16/2264

• WO04/397 – in relation to P16/2265

• WO04/398 – in relation to P16/2266

• WO04/399 – in relation to P26/3272

The native title party’s application for a determination of native title (WC99/29) was entered on the Register of Native Title Claims from 4 October 1999.

1. An issue arose in relation to whether the objections were received within the statutory period of four months from the s 29 notification day. The deemed closing date taking into account the weekend and public holidays was 29 December 2005 (s 36(2) Acts Interpretation Act 1901 (Cth)). Although an attempt was made to collect Tribunal mail on 29 December 2004, no Australian Post mail was delivered to or otherwise reached the Tribunal on 29 December 2004. On 30 December 2004 the mail for both days was received by the Tribunal together. For this reason there was some uncertainty whether the objection would have been received by the Tribunal within time. The Tribunal decided not to take a strict and technical approach to the deemed closing date and considered it likely, given the post mark of 24 December 2004, that the objection would have been delivered on 29 December 2004, if Australia Post had provided the mail for delivery. The objector was given the benefit of the doubt regarding the day the objection was first able to be delivered and it was therefore accepted (s 77). When the parties were notified of the receipt of the objection their attention was drawn to this issue. No party challenged the acceptance decision and the Tribunal therefore has jurisdiction to deal with the objection.

2. The proposed licences, with the exception of P26/3272, are located between 30 kilometres to 44 kilometres northerly of Coolgardie, in the Shire of Coolgardie, and areas range from 5.2 hectares to 198.66 hectares.  P26/3272 comprises an area of 182. 41 hectares and is located 11 kilometres north-easterly of Kalgoorlie in the City of Kalgoorlie-Boulder.  All proposed licences are overlapped 100% by the registered claim of the native title party.  

1. In addition two other registered claim groups overlap the proposed licences at 100% and have the status of native title parties:

• Widji People (WC98/7)

• Maduwongga People (WC99/9)

1. On 19 September 2004 the Widji native title party also lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences (WO04/257).  The application was dismissed on 24 March 2005 on the grounds that the native title party had failed within a reasonable time to proceed with the objection and to comply with a direction of the Tribunal (s 148(b)) and reasons published 30 May 2005.  The Maduwongga native title party have not lodged an objection in relation to the proposed licences.

2. On 10 May 2005 the Government party advised the Tribunal that the application for P16/2260 had been withdrawn on 2 September 2004 and the objection in relation to that tenement was dismissed on 27 May 2005.  Henceforth my reasons for determination apply only to the remaining proposed licences the subject of these objection applications.

Conduct of the inquiry

1. On 17 February 2005, in accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions were in the usual form which, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate or finalise agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. Government party compliance was due on 18 April 2005 and native title party compliance on 26 April 2005. At the preliminary conference convened on 1 March 2005, the grantee party representative, Mr Nathan McMahon, advised that a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region had been executed and forwarded to the Goldfields Land and Sea Council, the regional native title representative body. Mr McMahon indicated that the grantee was not prepared to consider any other agreements and requested that the matter be determined by the Tribunal as soon as practicable. At the request of the grantee party, and with the support of all other parties, directions were amended to align with the associated Widji objection (WO04/257), requiring native title party compliance by 12 April 2005. During the Listing Hearing of 15 April 2005, I approved a further extension to the native title party to enable it to provide affidavit evidence in support of its statement of contentions on or before 29 April 2005.

2. Contentions and evidence from the Government party and the native title party have now been submitted. The grantee party has sought to rely on contentions submitted by the Government party. I am satisfied that 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 exploration and prospecting licences 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.

Evidence in relation to the proposed act

1. With the exception of P26/3272 the underlying tenure of proposed licences is either entirely or substantially pastoral lease.  2.1% of the land the subject of P16/2256 comprises Crown Reserve for the purposes of a cemetery and 6.9% of P16/2259 is unallocated Crown land.  Road Reserves occupy very small areas of some proposed licences.  P26/3272 encompasses 99.1% Crown Reserve (for the purposes of a common), the remaining 0.9% comprising unallocated Crown land.  There are no Aboriginal communities or sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) within the proposed licences, although Ningia Mia Aboriginal community is located approximately 7.5 kilometres south of P26/3272.

2. The mapping documentation provided by the Government party shows extensive exploration and interest in the area of each of the proposed licences and that adjacent to it. However, Tengraph Quick Appraisals show only one pending or live mining title application overlapping the subject areas (M16/351, active, overlapping P16/2265), although maps indicate that a number of applications are live and pending in the vicinity of the subject areas. In addition, the list of dead tenements evidences a large number of mineral titles (exploration and prospecting licences, mineral claims, water reservations, miners homestead leases and gold mining leases) active variously between 1895 and 2004, as well as twelve applications for mining leases, of which all but one were withdrawn prior to grant.. It is clear that the entire area has been subject to considerable exploration and mining activity over a long period of time, and that there appears to be continued interest in the area. The area overlapping and adjacent to P26/3272 (WO04/399) appears to be somewhat less intensively explored in that the Quick Appraisal shows no pending applications, live titles or dead tenements overlapping the subject area. However, as is also the case for each of the other proposed licences, the entire area is subject to a ministerial direction pursuant to s 57(4) of the Mining Act, which prohibits the making or grant of an exploration licence on the basis that extensive mining is being carried out. 

3. In addition to the objection lodged by the Widji native title party in relation to these proposed licences, a further six objections by affected native title parties have been lodged from 1998 to date in relation to tenements overlapping or abutting the area subject to this objection.  Of these, two were resolved by withdrawal of the objection following agreement, two were dismissed for failure to proceed with the objection application (s 148(b)), one objection resulted in a Tribunal determination that the expedited procedure should apply (WO04/62 – applicable to 15 prospecting licences) and one remains active in the Tribunal’s inquiry processes.

4. The grant of the proposed licences will be subject to the standard endorsement and conditions applicable to all prospecting licences in Western Australia as previously set out 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 [16]. Further conditions apply to those proposed licences overlapping pastoral land (the grantee must advise leaseholders prior to undertaking airborne surveys or ground disturbing activities), and the portion of P16/2256 which is designated Cemetery Reserve 4271 (no mining on the reserve, mining within 140m laterally from the Reserve to be confined to a depth of at least 50 metres, and public access to be maintained).

5. The Government party will also impose the following condition on the grant of the proposed licences:

   ‘The Licensee, if so requested in writing by the Central West Goldfields People, the applicants in Federal Court application no. WAG 65 of 1998 (WC99/29), such request being sent by pre-paid post to reach the Licensee’s address, 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.’

Evidence provided by the native title party and confidentiality issues

1. In support of the statement of contentions for each of the associated objections the native title party has submitted five affidavits of Elizabeth Sambo, sworn in Kalgoorlie on 19 April 2005.  On the same date Ms Sambo requested that the contents of these affidavits remain confidential between the parties associated with the Inquiry and not be published in a Tribunal determination or in any other forum.

2. I have previously dealt with the same issue of confidentiality (Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, NNTT WO04/389, [2005] NNTTA 35 (30 May 2005), Hon C J Sumner (at [18]-[34])) and adopt those findings for the purpose of the present matters. As in that matter the contentions and affidavit evidence lodged in the present matters are similar to those lodged in relation to other Central West Goldfields objections (see for example Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner (‘Internickel’)).  I find that the information provided is too generalised to be considered sensitive enough to make confidentiality orders, and because of the general nature of the evidence and that it is already substantially contained in other determinations, I have no compelling reason to repeat the contents of the affidavit verbatim for the purposes of this determination.  It will only be necessary to refer to specifics relevant to the determination of these matters. 

3. The affidavits relating to WO04/395 to WO04/398 inclusive are similar in content save for the prospecting licences numbers.  The general information contained within is also very similar to that submitted in relation to a number of Central West Goldfields objections (Internickel at [31]).  In paragraph 9 of each affidavit Ms Sambo deposes that there are “traditional Aboriginal water-sources” and “spiritual sites, such as a rockhole” which are said to be close to the subject area and have been mapped.  It is also said that there are a number of other sites which are not mapped and which are therefore vulnerable to exploration should grantee parties not first consult with the native title party.  In relation to WO04/399 (P26/3272) Ms Sambo expresses the same concerns regarding unmapped sites and deposes once again that the proposed licence is located close to significant water sources created in “the dreaming”.  Reference is also made to a “rock formation for mining ochre” which is said to already be mapped and recorded and which is close to the proposed licence.

4. Ms Sambo is one of eight persons who collectively form the applicant for the Central West Goldfields People native title claim, and currently represents the group in future act matters.  Her evidence is uncontested and I accept her statement that she is a senior woman of the Central West people, with attendant responsibilities towards the guardianship of the land with which the native title party is associated.

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, including the provisions of s 46 (conditions imposed on the grant of any prospecting licence), s 20(5) in relation to the portion of subject land occupied by pastoral leasehold, and ss 24 and 26 in relation to Reserve tenure conditions to be imposed for prospecting licences (see Walley at [24]-[37]), to contend that there is not likely to be direct interference with the carrying on of community and social activities by the native title party in relation to the area of land concerned.

3. The native title party’s statements of contentions and evidence is that hunting, gathering and educative visits to the subject area will be curtailed or even prevented as a result of the grant of the proposed licences.   However as noted in Internickel at [34], these statements lack specificity and do not reference contemporary or regular activity.  In addition, the “rocky country” referred to in contentions (para 3) is not readily identifiable from Tribunal Geospatial mapping.  Further, the grant of the proposed licences 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.

4. On the issue of existence of prior mining activity, the fact that objections have been made and withdrawn previously and the lack of evidence on prior detrimental affect on community and social activities in the area, I adopt the findings in Internickel (at [38]), on the basis that the contentions and evidence in that matter were very similar to those provided here.  The finding is that these factors make it less likely that there will be direct interference with the native title party’s community or social activities by the grant of the proposed licences.

5. With respect to the contentions that the spirituality of the land will be destroyed by prospecting activities and that traditional punishment will probably be levelled against those with responsibility for special places if damage occurs, I adopt the findings in Internickel (at [39] & [40]) that these factors do not make interference with the native title party’s community or social activities likely.

6. As in Internickel (at [41]) I also have regard to the fact that the native title party would withdraw the objection if a proper heritage survey was carried out (i.e. according to the Central West Alternative Heritage Agreement).  While this agreement is not acceptable to the grantee party, the Government party’s proposed condition (para [16] above) means that the native title party will be able to insist on a Regional Standard Heritage Agreement (RSHA) being entered into and survey carried out thus ensuring that Aboriginal heritage, including sites of particular significance, is identified.

1. Taking all these factors into account I find that the activities on the proposed licences 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 that there are no sites 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 licences. 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. In relation to s 237(b) of the Act, the Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act, (to which the grantee party’s attention is drawn upon grant of the proposed licences), and the associated regulatory regime would protect areas or sites of particular significance from interference.

1. I adopt the findings of the Tribunal in Walley (at [50]-[51]) in relation to the Government party’s regulatory regime. 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.  The Tribunal will 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.

2. With the exception of P26/3272 (WO04/399), Ms Sambo refers to the area of the proposed licences as being “in close proximity … to Kunnanulling”, this area containing traditional water sources and rock holes of “high spiritual significance”.  This evidence is uncontested and according to Tribunal mapping certainly Kunanalling appears to be no more than three kilometres (and in some cases considerably closer) from the proposed licences subject to WO04/395 and WO04/396.  However, P16/2265 (WO04/397) and P16/2266 (WO04/398) are some 12 kilometres distant from Kunanalling.  Mapping also reveals a number of watercourses bisecting those proposed licences closer to Kunanulling but without specific information I am unable to make a definite finding on their significance or otherwise to the native title party.  However, having regard to Ms Sambo’s evidence and the findings in WO04/61 (reference above) in relation to the same general area, I consider it quite possible that sites of particular significance to the native title party exist on or in the vicinity of those proposed licences.

3. Registered sites Pakurl, Parkuta Rockholes and Wartupirti Rockholes are evidenced by Tribunal mapping to be approximately six to eight kilometres west of P16/2265 (WO04/397).  Parkuta and Wartupirti Rockholes are open access sites with no restrictions and are listed as water sources.  Pakurl is a closed mythological site comprising a man-made structure according to details on the Sites Register.  It is entirely possible some or all of these sites are the rockholes or other places of spiritual significance referred to in Ms Sambo’s evidence but again the affidavit lacks the specificity to allow me to infer a connection.   In any event these sites are sufficiently distant from the subject area for me to infer that disturbance from activities permitted upon grant of the proposed licences is unlikely.  There may be other sites of particular significance to the native title party in the area specified but I have no evidence before me to make that finding. 

4. In relation to P26/3272 (WO04/399) Tribunal mapping reveals the presence of a large number of registered sites immediately north east and east of Kalgoorlie, the closest site in that group being four and a half kilometres south west of the subject proposed licence.  Further, a site known as Yarri Road Quarry is located less than two kilometres south south west of P26/3272 and I infer that this open access, no restrictions site could be the same place as the ochre mining site referred to in Ms Sambo’s affidavit.  On the basis of the evidence before me I am unable to determine whether this site is of particular significance to the native title party but I am prepared to accept that it may be.

5. On the basis that there may be sites of particular significance in the vicinity of at least some of the proposed licences 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 of those area or sites.  I am satisfied that the regulatory regime in place will ensure that interference with sites is unlikely.  Ms Sambo repeats an assertion made in previous matters that a full Aboriginal heritage survey is necessary after which the grantee party would be free to carry on exploration.  The objection application states that the objection will be withdrawn once the CWAHA is entered into and a heritage survey carried out.  The grantee party has expressed its willingness to conduct a heritage survey (albeit of the kind described in the RSHA) and is mindful of its responsibilities under the Aboriginal Heritage Act to protect Aboriginal Heritage. 

6. I have previously considered the issue of the relevance of the RSHA and the Government party’s proposed condition in expedited procedure inquiries (Linda Champion (at [29]-[35])).  The situation with respect to the RSHA and the Government party’s proposed condition is similar to that case and I adopt those findings here.  I accept that the grantee party will consult with the native title party about these matters if the tenements are granted.  As stated above, having perused both agreements, I can see no reason to suggest that Aboriginal heritage will be protected more effectively by one than the other.  If, after consultation, agreement cannot be reached the native title party under the Government party’s proposed condition can insist on a survey pursuant to the RSHA (Linda Champion at [33], [35]).  I am satisfied that the Government party’s regulatory regime which applies to them means that there is no real risk they will be interfered with.

7. The above findings are consistent with those made in WO04/61 in relation to the same general area.  In that matter I was satisfied that there were sites of particular significance to the native title party on or in the vicinity of the proposed prospecting licences but that the Government party’s regulatory regime was effective in making interference with them unlikely.

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 native title party’s contentions and evidence on this point are also similar to those provided in Internickel and in Linda Champion.  They contend that the activities permitted by the grant of a prospecting licence would constitute major disturbance to land ‘even from the view point of the general community’.  Both the Linda Champion and Internickel matters involved exploration licences but the activities permitted and regulatory regime are generally the same for the both categories of licence except that prospecting is less intrusive in that the quantity of material which can be removed is 500 tonnes instead of 1000 tonnes.  I adopt the findings in Internickel (at [50]-[52]) (which are similar to those in Linda Champion (at [77]-[79])) to find in this matter that there is unlikely to be major disturbance to land.

3. Although now subject to appeal, I note that since the conclusion of contentions and evidence in this matter the Federal Court has endorsed the Tribunal’s approach to the issues raised by s 237(c) (Little v Oriole Resources Pty Ltd [2005] FCA 506 (29 April 2005)).

Determination

1. The determination of the Tribunal is that the grant of prospecting licences P16/2253, P16/2254, P16/2255, P16/2256, P16/2257, P16/2258, P16/2259, P16/2263, P16/2264, P16/2265, P16/2266 and P26/3272 to Cazaly Resources Limited is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

30 May 2005